University of Kentucky
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Law Faculty Scholarly Articles
Law Faculty Publications
1972
Venue of Civil Actions in Kentucky
William H. Fortune
University of Kentucky College of Law, [email protected]
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William H. Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1972).
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Venue of Civil Actions in Kentucky
By WmLTam H. FORTUNE 0
CONTENTS
HISTORY AND INTRODUCTION ..................................................................................
1.
II.
III.
DismCTiNc'o BETwn.N
JURISDICTION AND VENUE ........................................
Page
498
502
DisCUSsION OF TEE STATUTES ........................................................................
506
A.
B.
C.
D.
506
512
518
521
Actions Involving Land ..........................................................................
Actions Against Corporations ................................................................
Actions for Injury to Person or Property ..............................................
Transitory Actions ................................................................................
MAJOR VENUE PROBLEMS IN THE STATE ......................................................
526
A.
B.
C.
D.
E.
F.
Property or Person Outside the State ..................................................
Actions Involving More Than One Claim or Theory of Relief ............
Multiple Defendants ..............................................................................
Counterclaims, Cross-claim and Third-Party Complaints ..................
Dismissals and the Statute of Limitations ............................................
Change of Venue ....................................................................................
526
533
543
543
548
550
PATH TO REFORM ..................................................................................
552
IV. THE
A. The Ohio Experience ..............................................................................
B. Recommendations for Kentucky ............................................................
552
557
1. Regulation by the Court of Appeals ..............................................
2. Specific Recommendations ..............................................................
557
559
a.
b.
c.
d.
e.
The Broad-Based Rule ............................................................
Multiple Defendants ................................................................
Multiple Claims ........................................................................
Transfer of Actions Where Venue is Improper ....................
Transfer of Actions Where Venue is Proper ..........................
559
561
562
563
564
*J.D. University of Kentucky (1964). Assistant Professor of Law at University of Kentucky College of Law since 1969, teaching Civil Procedure and
Federal Courts.
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HISTORY AND INTRODUCTION
In 1851 the Kentucky General Assembly followed the lead
of New York State' and enacted a Code of Civil Practice2 to
replace the antiquated system of common law pleading. The
Code with revised somewhat and re-enacted by the General
Assembly in 1854.3 Johnson's Code, as it was called, regulated
civil practice in the state until 1877. Title V of Johnson's Code
was designated "The County in which an Action may be Brought,"
and contained eighteen sections setting out rules to govern the
location of lawsuits. This was Kentucky's original venue code.
As well as regulating the venue of such actions as partition of
real property4 and settlement of estates,5 the Code also addressed
itself to problems of the time, designating the venue of actions
to sell slaves 6 and to sue turnpike road companies7 and the owners
of mail stages.8
In 1877 Johnson's Code was replaced by a code which came
to be known as Carroll's Code, after its chief annotater, John D.
Carroll. The venue sections were re-enacted without substantial
change (although references to slaves were omitted) as Title V
of the Code of 1877 and styled "The county in which Action
must or may be Brought." The use of the word must is significant.
It indicates a growing confusion as to whether some of the
sections in Title V expressed geographical limitations on the
power of courts to act. If they did limit the power of courts to
act they were jurisdictional rather than merely venue statutes.
Practice in Kentucky was to be governed by Carroll's Code
for seventy-six years, until July 1, 1953, the effective date of the
Rules of Civil Procedure. In 1950, however, the General AsIThe New York Code of 1848 (the Field Code) was the precursor of all
practice codes in the United States. C. CLARK, CODE PLEADING, 21 (2d ed. 1947).
2 Kentucky Code of Practice, enacted March 22, 1851, prepared by M.C.
Johnson, James Harlan, and P. S. Loughborough.
3 Kentucky Code of Civil Practice, enacted in 1854, prepared by M.C. Johnson,
James Harlan, and J.W. Stevenson [hereinafter cited as Johnson's Code].
4 Johnson's Code § 93.
5 Johnson's Code § 96.
6 Johnson's Code § 97.
7 Johnson's Code § 103.
8 Johnson's Code § 102.
9 Civil and Criminal Codes of Practice of Kentucky, enacted in 1876, prepared
by Richard A. Buckner and Joshua F. Bullitt, Commissioners, and Alvin Duvall,
Umpire. Carroll's first annotated edition appeared in 1888. Code sections will be
hereinafter referred to as "CC" and the Code itself as "Carroll's Code."
HeinOnline -- 60 Ky. L.J. 498 1971-1972
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VENUE OF CIVIL ACTIONS IN KENTUCKY
sembly reacted to sentiments for simpler and more flexible rules
of practice by establishing a Civil Code Committee to study the
existing code and recommend changes."" The Committee was
restricted to proposing changes which would not abridge, enlarge, or modify the substantive rights of litigants."It was not surprising that the Civil Code Committee" turned
to the Federal Rules of Civil Procedure [hereinafter referred to
as FRCP] which had been enacted in 1938. Sentiment among
the bench and bar was strongly in favor of the Federal Rules' 3
as they provided a well researched and thoroughly tested model
in simplicity and liberality.
The Federal Rules did not, however, purport to deal with
venue, other than to make it clear that venue was not jurisdiction
and was a personal defense waived if not timely asserted.' 4 To
make it clear that the Rules did not regulate venue, FRCP 82
provided that "the rules shall not be construed to extend or
limit the jurisdiction of the United States district courts or the
venue of actions therein." The Kentucky Civil Code Committee
apparently at one time considered a broad revision of the venue
sections 15 but ultimately submitted a draft to the Court of
Appeals which, like the Federal Rules, did not purport to
regulate venue. The Committee substantially adopted FRCP 8216
and the comments to that rule provide in part, 17 "[T]hey [jurisdiction and venue] appear more as matters of substantive law
addressing themselves to legislative action, rather than a proper
subject for court rules dealing with practice and procedure."
1o Ch. 151, [1950] Ky. Acts 609.
11 Id. at § 2.
'2 Committee: Judge Porter Sims, Chairman, Hon. Morton J. Holbrooke,
Secretary, Judge Lawrence S. Grauman, Judge A. J. Bratcher, Hon. T. C. Carroll,
Hon. Marion W. Moore, Hon. Allen Prewitt; Staff: Judge Robert U. Cullen, Judge
Watson Clay, Hon. Ben B. Fowler, Hon. George M. Catlett.
13 Fowler and Catlett, Report of the Civil Code Committee, 16 Ky. ST. B.J. 28
(1951).4
1 Fun. R. Civ. P. [hereinafter cited as FRCP] 12(h) provides that the defense
of improper venue is waived if not asserted in the initial motion to dismiss under
FRCP 12 or, in the event no motion to dismiss is made, in the initial answer.
15 Clay, What about the Civil Code RevisionP, 15 KY. ST. B.J. 68, 70 (1950):
In one Code we have many provisions relating to the venue of different
types of actions. It is proposed to broaden the base of venue and to make
it more uniform and specific.
16 The only difference between FRCP 82 and Ky. R. Civ. P. [hereinafter
cited as KRCP] 82 is the substitution of "any court of this Commonwealth' for
"the United States district courts:'
17 Kentucky Rules of Civil Procedure Tentative Draft, at 287 (undated, on ifie
University of Kentucky Law Library).
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Furthermore, the Committee stated they felt precluded from
proposing regulation of venue by the terms of the act establishing the Committee, which stipulated that no changes in the
substantive law were to be made. To drive the point home the
Court of Appeals itself added the following sentence to proposed
Rule 18, governing the joinder of claims, "The right of a plaintiff
to join claims in his complaint is subject to the statutes governing
venue." The Kentucky Rules of Civil Procedure [hereinafter
KRCP], as adopted, did not then regulate venue except to make
it clear that venue was a personal defense which was waived if
not timely asserted.'
At the time of the adoption of the Civil Rules in 1952 the
venue sections of Carroll's Code were transferred intact into the
Kentucky Revised Statutes. The General Assembly of 1952
authorized the Court of Appeals to promulgate rules of civil
procedure with the initial rules to become effective on July 1,
1953.19 At this time the Civil Code Committee had made its
report and the legislature knew the sections of Carroll's Code
which would be supplanted by the new rules and those which
would not. Thus, the legislature repealed the sections to be
supplanted and authorized the Statute Revision Commission to
transfer unrepealed sections of the Code to the Kentucky Revised
Statutes.20 The Statute Revision Commission transferred the
venue sections of Carroll's Code to Chapter 452 of the Statutes
where they appear as Kentucky Revised Statutes [hereinafter
KRS] §§ 452.400--452.480. The effective date of the transfer was
July 1, 1953.
It is unfortunate that the Civil Code Committee did not see
fit to grapple with the monster venue had come to be. The venue
code was designed for practice in 1851, not 1951, and had not
been particularly inspired in the beginning. Amendments 2 ' and
court decisions 22 had confused reasonably straight-forward statutes. The problem was compounded by the fact that venue
18 KRCP 12.08.
19
2 Ch.18, [1952] Ky. Acts 29.
9Id.
For example the revision of 1898 (ch. 59, [1898] Ky. Acts) turned CC 65,
a simple
section governing actions to settle estates, into an unintelligible jumble.
22
For example the decision in Ocean Accident and Guarantee Corporation v.
Milford Bank, 33 S.W.2d 312 (Ky. 1930), discussed in detail in the section of
this paper on the venue of actions against corporations.
21
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VENUE OF CIvIL
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provisions could now be found throughout the Kentucky Revised
Statutes as a result of the adoption of substantive laws with their
own venue sections.2 3 The Civil Code Committee furthermore
must have known that practice provisions retained as code pleading relics were not in keeping with the spirit of the new procedural
rules and that conflict would arise.
The refusal of the Committee to deal with venue was doubly
unfortunate because the leading authority on venue in the United
States had, in 1951, specifically addressed himself to Kentucky's
venue problems and suggested a simple and broad-based venue
code. George Neff Stevens at the time was Dean of the University of Buffalo Law School and had just completed a comprehensive analysis of the venue statutes of all 48 states, which was
printed in the MicmGA1 LAW BEvmw.24 In this article Dean
Stevens pointed out a number of venue problems inherent in
most codes and proposed a model venue code to serve, as he put
it, as a guide "for those who are interested in eliminating needless
confusion in this field."2 5 Dean Stevens was solicited by the
KENTucKy LAw JoumNAL to address himself specifically to Kentucky's problems. Because of his ties to Kentucky he accepted the
opportunity and his article appears in volume 40 of the KENTuC=26
LAW JouINAL in a symposium on the reform of civil procedure,
designed to assist the Civil Code Committee which was then
engaged7 in the work thrust upon them by the 1950 General As2
sembly.
Stevens analyzed the general problems in Kentucky but
attempted no specific analysis of the statutes. He proposed a
venue code almost identical to that he had proposed in the
MiCHlGAN LAW IEWvra. 28 It was, of course, not adopted or apparently even considered by either the committee or the legislature.
23
For example ado tion, where venue is regulated by Kentucky Revised
Statutes [hereinafter KRS § 199.470.
24 Stevens, Venue Statutes: Diagnosis and Proposed Cure, 49 MicH. L. REV.
307 (1951). Stevens is now a professor at University of California, Hastings College of Law.
25 Id. at 322.
28
Stevens, Venue Reform in Kentucky-A Proposal, 40 Ky. L.J. 58 (1951).
Stevens has a master's degree from the University of Louisville and taught there
to 1941.
from 21936
7
Sims, The Work of Kentucky's Civil Code Committee, 40 Ky. L.J. 7 (1951).
28 Stevens, supra note 24, at 332-340; Stevens, supra note 26, at 66-75. The
only difference between the original model and that proposed for Kentucky is
that the proposed code for Kentucky defines the place of residence of a prisoner.
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Stevens found Kentucky to have five problems connected with
venue: 1) confusion with subject matter jurisdiction; 2) difficul-
ties in joining actions; 8) confusion with jurisdiction over the
person; 4) difficulties in joining parties; and 5) irrational grounds
for venue. Of these general problems only the first has been
solved. KRCP 12.08 laid to rest any confusion between venue
and subject matter jurisdiction.29 But the other four problem
areas remain unsolved today.
The purpose of this paper is primarily to analyze the statutes
themselves (which has never been done) and secondarily to
suggest the path to reform. The paper is divided into four parts.
Part I is a brief history of the confusion in Kentucky between
jurisdiction and venue. Some exposure to this history is essential
to an understanding of the older cases, which in some areas are
the only cases in point. Part II is an analysis of the four major
venue statutes in KRS Chapter 454: KRS § 452.400-actions
involving land; KRS § 452.450-actions against corporations; KRS
§ 452.460-actions for personal injury or property damage; and
KRS § 452.480-transitory actions. Part III is an analysis of the
major venue problems in Kentucky: (a) actions involving a
non-resident or property outside the state; (b) actions involving
more than one claim or theory of relief; (c) the problem of
multiple defendants; (d) cross-claims and third-party complaints;
(e) dismissals and the statute of limitations; and (f) changes of
venue. Part IV traces the Ohio experience and suggests that the
Kentucky legislature and Court of Appeals follow the example
set by Ohio.
I.
DISTINCTION BETWEEN JURISDICTION AND VENUE
The distinction between venue and subject matter jurisdiction
is fundamental. Subject matter jurisdiction is the power to adjudicate a particular matter whereas venue is the statutory designation of the county or district in which that power should
ordinarily be exercised. The parties cannot confer subject matter
jurisdiction on a court by waiver or agreement, while improper
29 This was done by providing that venue is a personal defense waived if not
timely asserted whereas subject matter jurisdiction is a limitation on the authority
of the court to proceed and can be raised at any time.
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VENuE OF CVm ACTIONS iN KEmNucKY
venue is a personal defense for the protection of the defendant
and may be waived. 0
In Kentucky the distinction between venue and subject matter jurisdiction was recognized and articulated in the early case
of Gillen v. Illinois Cent. If. Co.31 The plaintiff sued in McCracken county for fire damage to her realty allegedly caused by
defendant's negligence. At the trial it was ascertained that the
land did not lie in McCracken county and the court, on defendant's motion, dismissed the case for lack of "jurisdiction."
Civil Code [hereinafter CC] § 62 (now KRS § 452.460) provided
that an action for injury to realty must be brought in the county
in which the land is located. The defendant in Gillen had not,
however, objected to the maintenance of the suit in McCracken
county in his answer and amended answer. The Court of Appeals
reversed the dismissal and flatly held that Title V (Section 62
through 77) of Carroll's Codes, headed "County in which an
Action Must or May Be Brought" was not jurisdictional but only
an expression of venue, and the defense of improper venue was
waived unless raised in the manner specified for personal defenses82
The jurisdictionof the McCracken circuit court was said to be
governed by CC § 966 (now KRS § 28.010) which provides that
"[the circuit court] has original jurisdiction of all matters, both
in law and equity, of which jurisdiction is not exclusively delegated to some other tribunal . . ." To illustrate the difference
between jurisdiction and venue the Court hypothesized a suit
brought for the amount in the case at bar ($800) in the McCracken quarterly court. The amount in controversy would be
beyond the jurisdiction of the quarterly court 38 and the objection
to jurisdiction would not be waived by the failure to include the
defense in the demurrer or answer 34 The Gillen case is well
reasoned and articulated. The opinion is particularly enlightened
so C. WhrIHT, HANDBoo ON TH IAW OF FmsA Coxrms 149 (2d ed.
1970); Stevens, supra note 24, at 317; cf. Nierbo Co. v. Bethlehem Shipping Co.,
308 U.S. 165 (1935).
31 125 S.W. 1047 (Ky. 1910). This case was discussed by Professor Stevens
in some detail in his analysis of Kentucky's venue problems.
82125 S.W. 1047, 1050 (Ky. 1910).
33KRS § 25.410 (formerly CC § 1051).provides that the jurisdiction of the
quarterly courts is limited to actions where the amount in controversy, exclusive
of interest and costs, is $500 or less.
84 125 S.W. 1047, 1048 (Ky. 1910).
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in recognizing that the difference between subject matter jurisdiction and venue is fundamental and statutes must be construed
so as not to confuse the two.
Prior to the adoption of the Civil Rules in 1953, unfortunately
the Court of Appeals did not adhere to the clear reasoning of the
Gillen case. The Court, although sometimes recognizing the
personal nature of venue, 5 at times regarded the venue statutes as if they expressed jurisdictional limitations on the
power of courts. 6 Undoubtedly the failure of Carroll's Code to
deal with the problem of how and when to attack improper
venue was a primary factor in the confusion. Improper venue
was called lack of jurisdiction by defendants counsel, as lack of
jurisdiction was a specific ground which could be raised by
special demurrer and could not be waived, 7 and the courts often
accepted that designation without question. 8 The fact that most
of the code provisions used the mandatory "must be brought"
may have contributed to the confusion.
The Court of Appeals at one point concluded that part of the
venue code was jurisdictional and part merely a designation of
proper venue. In Britton v. Davis39 the Court held that a suit
against an executor of an estate on a debt of the decedent was a
matter of jurisdiction not venue. The Court first repeated the
traditional definitions; "Venue is the county in which the action
may or must be brought, while jurisdiction is the power to
hear and determine the cause, but went on to draw a distinction
between "actions of a transitory character, and those that are
localized purely for the convenience of the defendants," and
"certain classes of actions that are so localized with respect to
their subject matter that only the court of a particular county has
jurisdiction." 4' In this latter category the Court put actions
involving land, the settlement of estates and winding up of
35James v. Holt, 244 S.W.2d 159 (Ky. 1951); Kentucky Utilities Co. v.
Steenman, 141 S.W.2d 265 (Ky. 1940); de Charette v. St. Matthew's Bank and
Trust3 Corn pany, 283 S.W. 410 (Ky. 1926).
6 Shadoin v. Sellars, 4 S.W.2d 717 (Ky. 1928).
CC § 92 enumerated the matters which could be raised by special demurrer
Lack of jurisdiction over the person and subject of the action were enumerated
ounds; improper venue was not. CC § 118 provided that objections to the jurisdiction
38 of the court could not be waived.
Stevens, supra note 26, at 61.
37
39 108 S.W.2d 665 (Ky. 1937).
40 Id. at 666.
41 Id. at 667.
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VENUE OF Civnm ACTIONS iN KENTUCKY
corporations, and actions against estates for debts of the decedent.
The distinction drawn in Britton is between cases localized
purely for the convenience of the parties and cases localized
because the subject of the action seems to dictate that only a
certain court should hear the matter. While the decisions in this
era were in conflict, the Britton distinction approaches an adequate rationale of the Court's behavior. The Court may have
felt that there was a real need for certain kinds of actions to be
tried in certain counties regardless of the desire of the parties.
Land cases are the obvious example. Geographical limitations
on the bringing of personal injury actions, on the other hand,
could be regarded as purely for the benefit of the defendant and
thus be deemed waivable.42 The defense of improper venue in
such a case bore the same consequences as a defense of lack of
jurisdiction over the person.
In 1953 KRCP 12 supplanted CC § 92 and CC § 118 which
together had governed the manner in which the defense of lack
of jurisdiction over the person and over the subject matter were
to be raised. KRCP 12 lumps improper venue with other personal
defenses and provides clearly that the defense is waived if not
properly raised, either by motion-in which case all personal
threshold defenses must be raised-or by the initial answer if no
motion to dismiss is made.43 Case law has construed a motion to
dismiss for failure to state a claim upon which relief may be
granted as raising the defense of improper venue only if the
impropriety of venue is evident on the face of the complaint;
otherwise the filing of a motion to dismiss for failure to state a
claim waives the defense of improper venue (as well as other
personal threshold defenses such as improper service of process) .
The enactment of KRCP 12 should have laid to rest any
confusion between jurisdiction and venue, and, with the exception
42
"The provision of section 74 of the Civil Code of Practice that a personal
injury action must be brought in the county in which the defendant resides, or in
which the injury was done, is not an absolute requirement, but is one that must
be invoked by the defendant if he wishes to compel compliance with it." James
v. Holt, 244 S.W.2d 159, 160 (Ky. 1951).
43 "A defense of lack of jurisdiction over the person, improper venue, instufficiency of process, or insufficiency of service of process is waived (a) if omitted
from a motion in the circumstances described in Rule 12.07, or (b) if it is neither
made by motion under Rule 12 nor included in a responsive pleading or an
amendment thereof permitted by Rule 15.01 to be made as a matter of course.'
KRCP
44 12.08(1).
Licking River Limestone Co. v. Helton, 413 S.W.2d 61 (Ky. 1967).
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cxy LAW JouRNAL
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of dictum in one case,45 the Court of Appeals has been consistent
in deeming KRS §§ 452.400-452.500 (now in a chapter titled
"Venue and Change of Venue") as mere designations of counties
in which defendants have a right to insist that actions be tried.46
II. DisCussioN oF T=E
STATUTES
There are four venue statutes of general application, and most
venue problems arise in the application of those statutes. They
are: KRS §§ 452.400-actions involving lands; 452.450-actions
against corporations; 452.460-actions for injury to person or
property; and 452.480-transitory actions. The other statutes in
the venue chapter are specific in nature and discussion will be
restricted to the four general statutes with more specific statutes
discussed only insofar as they relate to the general statutes.
The predictions as to the future actions of the Court of
Appeals made in Parts II and III of this paper are predictions
based on the statutes as they are now written. If a broadly based
venue rule, as suggested in Part IV, is adopted by the legislature
or the court, many of the suggestions made in Parts II and III
will be moot.
A. Actions Involving Land
KRS § 452.400, requires the following actions to be brought
in the county in which the subject of the action, or some part
thereof, is situated:
1) Actions for the recovery of realty or an interest in realty;
2) actions for partition except actions brought for the partition of a decedent's estate among his heirs [which must be
brought in the county in which the personal representative
is qualified];
3) for the sale of real property of a person under disability
pursuant to KRS Chapter 389 or for the sale of real prop45
In 20th Century Coal Co. v. Taylor, 275 S.W.2d 72 (Ky. 1955) the plaintiff
by amended complaint asked that he be adjudged an interest i land located out-
side the county in which the suit was pending. The trial court granted the relief
and the Court of Appeals reversed. In so doing the Court stated, 'We finally
come to a serious jurisdictional question, which involves the power of the court to
adjudge the plaintiff an interest in land situated wholly in another county." 275
S.W.2d at 75. This unfortunate statement can be considered dictum as it does not
apear in the opinion whether or not the defendant made a timely objection to
e venue of the amended complaint.
46 Licking River Limestone Co. v. Helton, 413 S.W.2d 61 (Ky. 1967); Clark
County National Bank v. Sanderson, 316 S.W.2d 64 (Ky. 1958).
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erty under a mortgage, lien, or other encumbrance or
charge, except for the sale of realty to satisfy the debts of
the decedent (in which case the action must be brought
in the county in which the personal representative is qualified) and;
4) actions for injury to realty.
In considering whether the venue of an action is governed by
KRS § 452.400 it is first necessary to determine whether the subject of the action is realty. "Land or real estate" is statutorily
defined in Kentucky to include "lands, tenements, hereditaments
and all rights thereto and interests therein, other than a chattel
interest." 41 This is an encompassing definition4 8 which includes
easements and passways,4 9 standing timber,50 and subsurface
minerals. 1 A lease for a term of years, however, is deemed a
"chattel real" 2 and is not land or real estate within the meaning
of the venue statutes.53 Timber and subsurface minerals are converted from realty to personalty at the time of separation from
the earth.5 4 The Court has held that a contract for the sale of
standing timber which contemplates immediate cutting works a
constructive severance of the timber so that the contract is one
55
for the sale of personalty rather than realty. The execution of
a mineral 'lease" on the other hand does not serve to transform
the minerals conveyed from realty to personalty. The 'lease,"
47
KRS § 446.010(13).
48 '"enements" and "bereditaments" are common law terms often used with
the term "land" to define realty. The word "tenement" most commonly means a
house or building. 42 Am. Jun. Property § 16 (1942). The word "hereditament"
means something capable of being inherited. 42 Am. Jun. Property § 17 (1942).
The Kentucky Court of Appeals has not found it necessary to hold something to be
a "tenement" or "hereditament," apparently feeling that the term "land" includes
things which at common law would have been deemed "tenements" or "hereditaments."
49
Har v. Brookshire, 248 S.W. 177 (Ky. 1923).
50
Meehan v. Edwards, 18 S.W. 519 (Ky. 1892).
51 Williamson v. Williamson, 4 S.W.2d 392 (Ky. 1928).
52 Kentucky Tax Commission v. Jefferson Motel, Inc., 387 S.W.2d 293 (Ky.
1965).
Edwards v. Bernstein, 21 S.W.2d 133 (Ky. 1929).
Timber: Cheatham v. Head, 262 S.W. 622 (Ky. 1924); Minerals: Kennedy
v. Hicks, 203 S.W. 318 (Ky. 1918).
55 Cheatham v. Head, 262 S.W. 622 (Ky. 1924); Tillford v. Dotson, 51 S.W.
583 (Ky. 1899). In Cheatham the Court held that "immediate" meant within a
reasonable time and that, on the facts of the case, two years was not an unreasonable time. This holding may have been dictated by the equities of the case. The
defendant had sold the standing timber to a furniture company and then had sold
the property under a general warranty deed to another party who knew of the sale
of the timber. The Court's holding prevented the plaintiff from taking advantage of
the covenant of general warranty.
53
54
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which in the case of coal or stone is usually tantamount to an
absolute conveyance 6 and in the case of oil and gas is a right to
explore and take, 57 is deemed to be a grant of an interest in real
estate. 50 The minerals remain an interest in realty, separate from
the surface interest until actual separation from the surrounding
earth, at which point the minerals become personalty."9
If the action is one for the "recovery" of realty KRS §
452.400(1) provides that it must be brought in the county in
which the land is located. Ejectment and quiet title are examples
of actions for the recovery of real estate. 60 An action for the
recovery of real estate is essentially an action where the plaintiff
asks the court to find that his interest in real property is superior
to that of the defendant and to enter an order accordingly. The
relief sought is in ren-an adjudication of rights in the property,
rather than in personam-an order against the defendant personally.61 Actions for specific performance, for example, are not
actions for the recovery of realty, as the court is being asked to
order the defendant personally to convey property, and it has
been held that actions for specific performance are not localized
by KRS § 452.400 but are transitory, to be brought where the
defendant resides or is summoned.62
aOWilliamson v. Williamson, 4 S.W.2d 392 (Ky. 1928); Kennedy v. Hicks,
203 S.W. 318 (Ky. 1918).
57Williams' Adm'r v. Union Bank & Trust Co., 143 S.W.2d 297, 299 (Ky.
1940).
581Id.
59Cent. Ky. Nat. Gas Co. v. Stevens, 120 S.W. 282 (Ky. 1909) held that an
action by a lessor for accrued royalties was an action for the recovery of personalty;
Kentucky Bank & Trust Co. v. Ashland Oil & Transportation Co., 310 S.W.2d 287
(Ky. 1958) held that the reserved royalty interest itself, as opposed to accrued
royalties which are payable after the oil is extracted, was an interest in realty.
6o Daiels v. Gillum, 262 S.W. 272 (Ky. 1924).
61 Historically 'local" actions were actions where land was the subject matter
of the action and the relief was in rem, or the action was in trespass where the
title to the land was technically in question. These actions were required to be
brought in the county in which the land was located. 1 J. MooRE, FEDmuL PPAcTICE (hereinafter cited as MooRE) para. 0.142(2.-2) at 1463-66 (1964). MooPE
lists the following in rem actions as historically local: quiet title, ejectment, foreclosure of a mortgage or vendor's lien, proceedings to cancel a mortgage, condemnation, suits to set aside a transfer, abatement of a nuisance, and partition. 1
MooRE para. 0.142 [2.-1] at 1457-58 (1964). Kentucky should hold all of these
historic in rem actions to be within the scope of either KRS § 452.400 (1) or the
subsections, KRS §§ 452.400(2) and 452.400(3).
more specific
62 Caudill v. Little, 293 S.W.2d 881 (Ky. 1956). Suits for recision of land
contracts, as opposed to actions to set aside a transfer, are also deemed to be in
personam and therefore not required to be brought in the county in which the
land is located. 92 C.J.S. Venue § 30 at 739 (1955). Kentucky has acknowledged
235 (Ky. 1892) and
this principle in two old cases: Thompson v. Elmore, 18 S.W.
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KRS § 452.400(2) and KRS § 452.400(8) merely provide that
in the in rem actions of partition, foreclosure, and sale of real
property of a person under disability, 63 venue is proper in the
county in which the land is located. Both sections contain
exceptions in the event the partition or forced sale is incident
to the settlement of a decedent's estate.6 4
Under certain conditions a plaintiff may attach property of
the defendant at the commencement of an action as security for
the satisfaction of any judgment recovered.65 The Court of Appeals has made it clear that when the defendant is a resident and
amenable to process that such an attachment does not alter the
basic character of the case from a transitory action to one localized
by KRS § 452.400(8).66 If the defendant is a non-resident and
(Footnote continued from preceding page)
Todd v. Lancaster, 47 S.W. 336 (Ky. 1898). In the second of these cases, however, the defendant was a non-resident and the Court held that, in such a case,
specific performance or recision could be granted by the court in the county in
which the land was located. The court had jurisdiction over the land and bad the
power to effectuate a decree of specific performance or recision by simply
adjudicating
plaintiff the owner of the land. The action was then one for the
"recovery of land"
with venue proper in the county in which the land was located.
The Todd case illustrates that specific performance or recision can be ordered by a
court with jurisdiction over either the land or the defendant; that the relief
granted is in personam (and the action therefore transitory) so long as the
defendant is within the state; that if the defendant is outside the state the relief
is in rem and the action governed by KRS § 452.400(1).
6.KRS § 889.010(13) also serves to localize an action for the sale of the
property of a person under disability to the county in which the land is located.
64 KRS § 452.400(2) excepts partition actions provided for in KRS § 452.420;
KRS § 452.420 fixes the venue of suits to partition a decedents property among his
heirs in the county in which the personal representative is appointed.
c
RS §
452.400(3) excepts actions for the sale of real property for the debts of a decedent
which, by virtue of KRS § 452.420, are to be brought in the county in which the
personal representative qualified. The Court held in Galloway v. Craig, 92 S.W.
320 (Ky. 1906) that a foreclosure action pursuant to a mortgage executed by the
decedent prior to his death could be maintained in the county where the land is
located, unless the personal representative had already initiated an action in the
county of his appointment for the sale of decedent's pVrop~erty to settle the estate.
It is the general rule that a statute fixing venue for land actions controls over a
statute fixing venue for actions against personal representatives. Annot., 93
A.L.R.2d 1199, 1209 (1964) citing Cox v. Simmerman, 98 S.W.2d 915 (Ky.
1936). In Cox v. Simmerman, however, it is clear that the action was not one for
partition among the decedents heirs and there was no conflict between the
statutes.
65 KRS § 425.184 provides for attachment at or after the commencement of
the action against: non-residents, persons avoiding service of process, or persons
who have or who are about to convey or remove property to defraud creditors.
In the event the sole ground for attachment is that the defendant is a nonresident the action must be on a contract or judgment.
60In Hatton v. Rogers, 121 S.W. 698 (Ky. 1909) plaintiff sued a Kentucky
resident on a debt, a transitory action required to be brought in the county in
which the defendant resides or is summoned. Plaintiff sued in a county in which
the defendant owned property, attaching the property at the commencement of the
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KY-rcxy LAw JouRNAL
not amenable to process the attachment at the commencement
of the action will convert the action to one quasi-in-rem with the
plaintiff limited in his recovery to the value of the property
seized.67 The venue of such an action is in the county in which
the property is located by virtue of KRS § 452.465, which fixes
venue inactions against persons who may be served by a warning
68
order attorney.
A court which enters an in personam judgment against a
defendant may order the sale of defendant's land (or other
property), wherever situated in the state, to satisfy the judgment. 69 The court has the power to order such a sale as an
incident to the litigation properly before it and to afford complete
relief between the parties. 70 Similarly if the plaintiff proceeds in
an independent action against a debtor of the defendant to
satisfy his judgment the court which entered the original judgment can decree the property of the third party sold. 71
In an action for damages or for the recovery of personalty it
may be necessary to make a finding as to the ownership of land.
For example, an action for conversion of timber will require a
finding that the plaintiff was owner of the land on which the
timber grew. If so the court may make such a finding without
regard to the location of the property even though the parties
will be collaterally estopped from challenging this finding in a
72
later proceeding.
(Footnote continued from preceding page)
action. The Court held the venue of the action improper as the defendant neither
resided
67 nor was summoned in the county of suit.
Harris v. Balk, 198 U.S. 215 (1904).
68 KRS § 452.465 provides that actions against persons who may be proceeded
against by warning order attorney must be brought in the county in which the
defendant resides or has property subject to attachment, or the county in which a
debtor of the defendant resides. The statute excepts actions mentioned in KRS
§§ 452.400-452.425 and in 452.440 and 452.470. Under KRCP 4.05 the following
types of defendants may be proceeded against by warning order: 1) non-resident
individuals absent from the state; 2) corporations without an appointed process
agent within the state- 3) a resident absent from the state for four months or
who has departed to defraud creditors; 4) a resident who is avoiding service of
process; and 5) an individual whose name or place of residence is unknown.
Service
69 by warning order does not authorize an in personam judgment.
Hargis v. Hargis, 151 S.W.2d 417 (Ky. 1914).
70
Id.
71KJRS § 452.440 fixes the venue of actions against debtors of defendants in
the county in which the debtor resides or is summoned or in the county in which
the original judgment was entered. Noe v. Brock, 91 S.W.2d 546 (Ky. 19361
makes it clear that such actions are not required by KRS § 452.400 to be maintained
in the72 county in which the land is located.
In Cent. Ky. Nat. Gas Co. v. Stevens, 120 S.W. 282 (Ky. 1909) plaintiff
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VEN E OF CIVIL AcIoNs IN KETucxy
If, however, the plaintiff by complaint or amended complaint
seeks an order decreeing his rights in land superior to those of
the defendant the action is one for the "recovery of land"-required
by KRS § 452.400 to be brought in the county in which the land
is located. 73 The fact that the plaintiff seeks incidental personal
relief against the defendant, for example a personal judgment in
a foreclosure action, does not affect the character of the action.
For example, the venue of an action to set aside a fraudulent
conveyance is in the county in which the land is located;74 the
action is for a personal judgment against the transferor, to have
the conveyance to the transferee set aside, and to adjudicate the
plaintiff a lien on the property. The gravamen of the plaintiff's
action against the transferee is the adjudication of a superior right
in real property and the transferee can insist that the action be
maintained in the county in which the land is located.75
Subsection (4) of KRS § 452.400 fixes the venue of actions for
"injury to real property". Actions brought under this subsection
are local rather than transitory, just as are foreclosure and quiet
title actions, but the relief sought by the plaintiff is in personam
rather than in rem. If the gravamen of the action can be con-
sidered to be injury to realty the suit must be brought in the
county in which the land is located. 76 The plaintiff can, in many
cases, however, convert the claim to a transitory action by
drafting his complaint to sound in contract or for conversion of
personal property. For example, the Court of Appeals has held
that a suit for the value to the defendant of the wrongful use and
occupation of land is an action for quantum meruit, rather than
(Footnote continued from preceding page)
lessor sued defendant lessee for accrued royalties on a gas-producing well located
outside the county. Defendant answered that the neighbor of plaintiff (with
whom defendant also had a lease) was claiming that the gas-producing well
was on his property and that he was entitled to the royalties. Defendant asked
that the neighbor be made a party and that the court adjudicate the ownership
of the site of the gas-producing well. The Court of Appeals held that it was
error for the trial court to refuse to bring the neighbor into the action. The ownership of the land was merely a finding of fact to be made in order to adjudicate
the rights of the parties to the accrued royalties.
73 In 20th Century Coal Co. v. Taylor, 275 S.W.2d 72 (Ky. 1955) plaintiff
originally sued for an accounting and subsequently asked for an adjudication of a
one-half interest in land owned by the defendant located outside the county. The
Court 4held venue to be improper as to the amended complaint.
7 Williams v. Davenport, 205 S.W. 551 (Ky. 1918).
75 Daniels v. Gillum, 262 S.W. 272 (Ky. 1924).
76 Meredith v. Ingram, 444 S.W.2d 551 (Ky. 1969); an action against a life
tenant primarily for waste.
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injury to realty, and is thus maintainable in the county in which
the defendant resides. 77 The Court reached a similar result in a
suit for the wrongful cutting of timber where the measure of
damages sought was the value of the timber rather than dimunition of the value of the realty (the tort measure of damages for
injury to land).78
The analysis of KRS § 452.400 has been limited to problems
which arise when the land is located within the state. If the land
is located outside the state mixed questions of venue and jurisdiction arise; these are discussed in Part III. It is suggested in
Part IV that the venue of actions involving real estate, whether
in rem or in personam,be proper in the county of the defendant's
residence as well as in the county in which the land is located.
Such a change would give the plaintiff a choice of forums, neither
of which would be unfair to the defendant, and would also
eliminate controversies as to whether something was or was not
realty.
B. Actions Against Corporations
The second statute of general application to be analyzed is
KRS § 452.45079 which governs suits against corporations. The
statutes governing the venue of actions against banks or insurance
companies (KRS § 452.445) and against common carriers (KRS
§ 452.455) relate closely to KRS § 452.450 and will be discussed
herein. It is fair to say that the Kentucky venue statutes, other
than those involving land, represent a legislative balancing of
the interests of plaintiff and defendant in having the case tried
in a convenient place before a jury which will be fair to their
77
78
Swart v. Reveal, 29 S.W. 29 (Ky. 1895).
Roberts v. Moss, 106 S.W. 297, (Ky. 1907). In Asher v. Cornett 113 S.W.
131 (Ky. 1908) the plaintiff erred in framing his complaint in quantum meruit and
suing in the county in which the trees were cut. The Court held the venue improper. See also Annot. 42 A.L.R. 197, 217 (1926) and Annot. 30 A.L.R.2d 1219
1223 (1953) to the effect that actions for conversion of timber, stone, crops, and
the like, which become personalty on severance from the land, are transitory
actions and are not subject to the rule of Livingston v. Jefferson (discussed infra
in this article).
79 Excepting the actions mentioned in KRS §§ 452.400-452.420 both inclusive,
and in KRS §§ 452.430, 452.440, 452.445, 452.455, 452.465 and 452.475, an
action against a corporation which has an office or place of business in this state,
or a chief officer or agent residing in this state, must be brought in the county
in which such office or place of business is situated or in which such officer or
agent resides; or, if it be upon a contract, in the above-named county, or in the
county in which the contract is made or to be performed; or if it be for a tort,
in the first-named county, or the county in which the tort is committed.
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VENUE OF CIVIL ACTIONS IN KENTUCKY
respective positions.80 The balancing usually results in a statute
which gives the plaintiff a choice of forums which appear either
to be neutral or favorable to the defendant. A plaintiff suing
a natural person in tort, for example, must proceed in the county
in which the injury occured or in which the defendant resides. 81
On the other hand, when the defendant is a corporation, particularly a large corporation, the plaintiff has a virtually unlimited
choice of forums.
KIRS § 452.450 controls the venue of all actions against resident 2 corporations except actions whose venue is established by
the more specific statutes in the venue chapter8s The statute gives
the plaintiff the option of suing in the county: (1) where the
tort was committed; (2) where the contract was made; (3) where
the contract was to be performed; (4) where the chief officer or
agent resides; and (5) where the office or place of business is
located.
A corporation may, of course, have more than one office or
place of business within the state, and the Court held in Hill v.
4 that venue is proper, under the fifth option
Cumberland DairiesM
above, in any county in which the defendant corporation is
"doing business to such an extent that it is actually present there
and has such a responsible agent in the county as would presumptively bring home to the corporation notice of summons served
upon him as its representative." 5 The corporate defendant is
80 56 A .Jun., Venue § 4 (1947).
81 KRS § 452.460, discussed infra.
82A "resident! corporation is one with an office or place of business within
the state or a chief officer or agent residing in the state.
83 Those actions excepted by K1RS § 452.450 in which the defendant might
be a corporation are: 452.400-land; 452.410-actions to establish or set aside wills;
452.415 and 452.420-actions involving decedents' estates; 452.440-actions against
third parties after a "no property found" return on an execution against defendant;
452.445-actions against banks and insurance companies; 452.455-actions against
common carriers on a contract to carry property or for personal injury or property
damage; 452.465-actions against a defendant who may be proceeded against by
warning order attorney; and 452.475-actions against a public works contractor
for wages, or money owing for material or supp lies. As discussed infra, K]RS §
452.445 has been construed to be cumulative with KRS § 452.450.
84 288 S.W.2d 341 (Ky. 1956).
85 Id. at 343. The language of Cumberland Dairiesis reminiscient of the nowrepudiated "presence" theory for rationalizing the exercise of jurisdiction over foreign corporations. This theory has now yielded to the "minimum contacts" theory of
International Shoe Co. v. Washington, 326 U.S. 310 (1945). See generally Kurland,
The Supreme Court, the Due Process Clause and the In Personam Jurisdictionof
State Courts, 25 U. Cmr. L. REv. 569, 583-4 (1958). Although Cumberland Dairies
was a contract action there is no ground on which to believe the holding is restricted
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thus amenable to suit in any county in which it maintains places
of business, as defined, regardless of the degree of relationship of
the subject of the action to the particular locale. This leaves the
path clear for a plaintiff to shop for a favorable judge or jury or
to harass the defendant with a deliberately inconvenient forum.
KRS § 452.450 also fixes venue in the county in which "a
chief officer or agent" resides. A question raised and left unanswered by Hill v. CumberlandDairies is whether venue would
be proper in all counties in which agents of corporations reside.
Simple statutory construction (the word "chief', indicating one,
appears to modify "agent" as well as "officer") plus an appreciation of the potential unfairness of Cumberland Dairies should
lead a court squarely presented with the question to hold venue
proper under this subsection only in the single county in which
the chief officer or chief agent resides.8 6
As noted above KRS § 452.450 excepts actions localized by
more specific statutes. One of the statutes excepted on the face
of KRS § 452.450 is KRS § 452.44587 governing actions against
banks and insurance companies. In Ocean Accident & Guarantee
Corporationv. Milford Bank,88 however, the Court read KRS §
452.450 as cumulative with KRS § 452.445, so that a plaintiff suing
an incorporated bank or insurance company has the option of
suing in the locale provided by both statutes. The Court's
decision in Milford Bank is squarely bottomed on the legislative
history of the statutes involved89 and is not authority for ItS §
(Footnote continued from preceding page)
to contract actions. The part of the statute construed was the first part which is
of general
application to all actions brought against corporations.
86
An addtional reason for so holding is that Cumberland Dairies emphasized
corporate activity. An agent may engage in no corporate activity in the county
in which he lives and it would be inconsistent to hold the corporation to be
"present" (to use the language of Cumberland Dairies) in that county.
87 Excepting the actions mentioned in sections KRS 452.400 to 452.420 both
inclusive, and in KRS § 452.440 and KRS § 452.465, an action against an
incorporated bank or insurance company may be brought in the county in which
its principal office or place of business is situated; or, if it arises out of a transaction
with an agent of such corporation, it may be brought in the county in which such
transaction took place.
88 33 S.W.2d 312 (Ky. 1930).
89 The original code of civil practice (Johnson's Code of 1851) provided for
the venue of actions against insurance companies, banks and corporations in one
section (section 127) with the venue of actions against banks and insurance
companies more extensive than the venue of actions against corporations. The
section was divided in the revision of 1876 into a section on banks and insurance
companies (essentially what is now KRS § 452.445) and a section on corporations
(what is now KRS § 452.450). The revision did not retain the expansive language
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VmEE oF Civm ActioNs IN K
-rruc~y
452.450 to be read cumulatively with the other statutes excepted
on its face.
In fact, the only additional forum available to the plaintiff
when the corporate defendant is a bank or insurance company
is the county in which a "transaction" with an agent occured if
the cause of action arose out of that transaction. 0 "Transaction"
is a much more encompassing word than "contract', which is the
operative word in the general corporation statute. The Kentucky
Court of Appeals has construed "contract" narrowly and held that
an action against a corporation on quantum meruit cannot be
brought, under KRS § 452.450, in the county in which the contract is made or to be performed. 1 "Transaction," on the other
hand, has been construed by the Court to embrace "every variety
of affairs which can form the subject of negotiations, interviews,
or actions between two persons." 92 Such a definition would easily
embrace actions against a bank or insurance company for implied
contract when the contract would be implied in law from a
conversation between the plaintiff and the agent of the defen93
dant.
There is a separate statute' governing the venue of actions
(Footnote continued from preceding page)
applicable to corporations generally in the statute governing actions against banks
and insurance companies. The Court in Milford Bank reasoned it was illogical for
the revisors to have intended to make the venue for actions against banks and
insurance companies more limited than that against corporations generally. The
Court then construed the word "may" in the statute governing actions against
banks and insurance companies to indicate permitted but not mandatory forums,
with the result that a plaintiff, faced with a corporate bank or insurance company,
could add to the choice of forums provided in KRS § 452.450 those provided in
KRS § 452.445. Ocean Accident & Guarantee Corporation v. Milford Bank, 83
S.W.2d 312. 313-314 (Ky. 1930).
90KRS § 452.445 fixes venue in an action arising out of a transaction with
an agent in the county in which the transaction took place. It also fixes venue in
the county in which the principal ofice or place of business is located but this is
more restrictive than the like provisions of KRS § 452.450 and is therefore without
practical
significance.
9
Holcomb v. Kentucky Union Co., 90 S.W.2d 25 (Ky. 1936).
91
2
Barnetts Adm'r v. Brand, 177 S.W. 461, 463 (Ky. 1915), construing KRS
§421.210(2) (the "Dead Man's" statute); definition quoted with approval in
Stovall's
93 Ex'r v. Slaughter, 268 S.W.2d 94 (Ky. 1954).
In Spurlin v. Ranier, 457 S.W.2d 491 (Ky. 1970) the appellant insurance
company argued that the suit was not based on the policy but was a suit in
implied contract and therefore transitory. The Court did not meet this, as suggested in the text, by reliance on KRS § 452.445, the insurance venue statute, but
found the action to be in fact on the policy and proper under either KRS H§
452.445 or 452.450.
94 KRS § 452.455 provides:
With the exception of the actions mentioned in KRS § 452.465, an action
against a common carrier, whether a corporation or not, upon a contract
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against common carriers, 95 which is limited to actions upon a
contract to carry property and actions for personal injury or
property damage. If the action is on a contract to carry property
the carrier may be sued in three counties: (1) the county in
which the defendant "resides"; (2) the county in which the contract was made; and (3) the county in which the carrier agrees
to deliver the property6 For venue purposes the carrier "resides"
in only one county, that being the county in which the registered
office of the corporation is located.97 There is only a slight difference between the operative word in KRS § 452.455, "resides",
and the comparable term in KRS § 452.450, "an office or place of
business," but court construction of the two terms has led to
vastly different results. The carrier can be sued (under this
provision) only where its registered office is located, while the
general corporation can be sued any place it maintains an office.
If the action can be classified as an action for injury to a
person or his property, whether the plaintiff is a passenger or not,
venue is stated to be proper in either: (1) the county in which
the defendant, or either of several defendants, resides; (2) the
county in which the plaintiff or his property was injured; or (3)
the county in which the plaintiff resides if he resides in a county
into which the carrier passes. The statute provides that if the
action is brought by a personal representative that the residence
of the deceased controls, eliminating the possibility of appointing
an administrator to establish venue in a certain county. The provision for suing in the county of plaintiff's residence in the event
the carrier passes into that county is unique. It does not, however,
(Footnote continued from preceding page)
to carry property, must be brought in the county in which the defendant,
either of several defendants, resides; or in which the contract is made; or
in which the carrier agrees to deliver the property. An action against such
carrier for an injury to a passenger, or to otherperson or his property
must be brought in the county in which the defendant, or either of several
defendants, resides; or in which the plaintiff or his property is injured;
or in which he resides; if he resides in a county into which the carrier
passes; provided, if the action be brought hya personal representative,
the residence of the decedent, and not that of the personal representative
shall control.
95 Commercial Carriers v. Matracia, 311 S.W.2d 565 (Ky. 1958); statute
applicable to both foreign and domestic carriers; no denial of equal protection of
the laws.
96 The county in which the goods are "delivered" is the county in which the
goods are turned over to a connecting line rather than the county of ultimate
destination. Brunk v. Ohio & Ky. Ry., 105 S.W. 443 (Ky. 1907).
97 Tufts v. Cheasapeake & 0. Ry., 401 S.W.2d 58 (Ky. 1966).
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work an unfairness to the defendant as the defendant must be
doing business in the county for venue to be proper and the plaintiff is precluded from arbitrary forum shopping by the requirement of residence in the county at the time of suit."8
If the action is not one on a contract for the conveyance of
property, or for personal injury or property damage, venue is not
controlled by KRS § 452.455. Logic would dictate that the venue
of an action against a corporate carrier not controlled by KRS §
452.445 would be controlled by KRS § 452.450. That statute after
all makes an exception for those actions "mentioned" in KRS §
452.455 rather than excepting all suits against common carriers.
In Gainsboro Telephone Company v. Buckner,99 however, the
Court held that neither KRS § 452.455 nor KRS § 452.450 was
applicable to a suit against a corporate telephone company for
failure to convey a death message. The suit could not be classified
as one for injury to the person or as one on a contract to convey
property within the terms of KRS § 452.455. The Court then
ignored the wording of KRS § 452.450 and held that all actions
against common carriers were excepted from KRS § 452.450, with
the result that the action was then classified as a transitory action.
While dicta in a later case'00 supports Buckner and while Buckner
yields an equitable result in light of the over-broad construction
given KRS § 452.450, the decision does violence to ordinary rules
of statutory construction and would probably be overruled if the
question were presented to the Court again.
The complexity and arbitrariness of venue in suits against
corporations is intolerable. In any general statutory revision
corporations should be treated as natural persons, deemed to
reside (for venue based on residence) only where the principal
place of business is located. The special treatment of common
carriers, banks and insurance companies should be rejected as
anachronistic. These matters are discussed in Part IV.
9
Residence is determined as of the time of suit not injury. Iffinois Central
By. v. Stiths Admx, 85 S.W. 1173 (Ky. 1905). KRS § 452.465 is the successor
to CC § 73 which in turn succeeded section 102 of Johnson's Code. Under the
original section of Johnson's Code the carrier could be sued in any county in the
state without regard to the residence of the plaintiff.
9900169 S.W. 1000 (Ky. 1914).
Knight v. Penn. By., 94 S.W.2d 1013, 1014 (Ky. 1936).
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C. Actions for Injury to Person or Property
Tort actions against resident individuals are for the most part
governed by KRS § 452.460101 which gives the plaintiff the choice
of two forums: the county in which the defendant resides or the
county in which the injury was done. The statute covers injury
to person, property and character and is made subject to all
preceeding venue statutes in the chapter. Thus, torts involving
land or tort actions against corporations are not governed by KRS
§ 452.460. The statute was recently held to be inapplicable to
non-residents 102 and tort actions against non-residents will ordinarily be controlled by KRS § 452.210(4), the venue provision of
Kentucky's long-arm statute (discussed in Part III).
Contract actions against individuals are transitory and maintainable only where the defendant resides or is summoned. However, there may be personal injury or property damage as a result
of a breach of contract. Is an action for injury to person or
property based on a contract theory of liability, transitory or
governed by KRS § 452.460? The argument that such an action
is transitory finds support in Wood v. Downing's Administrator'03
in which the Court held injuries resulting from the defendant's
malpractice were merely the consequence of the breach of contract for treatment and did not serve to alter the basic transitory
nature of the action. The Court had earlier reached the same
result on a question of statute of limitations. 0 4 The two cases
together led to an amendment to the one-year statute of limitations to make it clear that that statute, and not the five-year
statute, applied in malpractice actions. 5 Wood v. Downing's
Administrator is bottomed on the common law antecedents to
101 "Every other action for an injury to the person or property of the plaintiff,
and every action for an injury to the character of the plaintiff, against a defendant
residing in this state, must be brought in the county in which the defendant resides
or in which the injury is done. Provided, that in actions for libel the actions shall
be brought in the county in which the plaintiff resides or in the county in which
the newspaper or publication is printed or published, or in the county in which
the transaction or act or declaration to which the publication relates is stated, or
purported to have been done or taken place.
if an injury occurs on a river or stream dividing two or more counties any
county bounding the river at the point the injury occurred may be considered the
county in which the injury is done for purposes of bringing the action."
1-02
Jones v. Camp .bell, 434 S.W.2d 653 (Ky. 1968).
103
62 S.W. 487 (Ky. 1901).
0
1 4 Menefee v. Alexander, 53 S.W. 653 (Ky. 1899).
0
1 5 Comment, 59 Ky. L.J. 990, 991 (1971); KY. AcTs ch. 92, § 2516 (1916).
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VENUE OF
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modem causes of action 0 8 and yields the unfortunate result that
a plaintiff injured by a breach of contractual duty must depend
on the vagaries of suing in the county in which the defendant
resides or is summoned, whereas a plaintiff injured by a stranger
can sue under KRS § 452.460 in the county in which the injury
was inflicted. The Wood decision is theoretically applicable not
only to malpractice actions but to any action for property damage
or personal injury where the theory of liability is contractual.
An example would be a suit for personal injury based on breach
of warranty. When presented with the opportunity, whatever
the context, the Court of Appeals should overrule Wood and
hold that the determining factor is the nature of the injury, not
the theory of liability, and that any action for injury to the person
against a natural person can be maintained under KRS § 452.460.
When the wrong complained of is not damage to property or
injury to person or character, the action, even though in tort, is
not localized by KRS § 452.460. Thus the Court held in Gover v.
Wheeler'0 7 that an action for claim and delivery with damages
for the wrongful detention of the property was not localized
under KRS § 452.460 and must be brought in the county in which
the defendant resided or was summoned. The injury to the plaintiff was the wrongful seizure and detention of his personal
property, an injury the Court held was not an injury to property.
In a later case for loss due to fraudulent misrepresentation, however, the Court did not analyze the plaintiff's injury to ascertain
whether it could be classified as damage to property.10 8 The
Court assumed that the case was controlled by KRS § 452.460
and concerned itself with a determination of where the loss
occurred. This case is inconsistent with the approach taken in
Gover v. Wheeler and is not warranted by the literal wording
of the statute. It does yield an equitable result, however, as
otherwise the plaintiff cannot proceed for purely economic loss
other than in the county of the defendant's residence.
Just as the venue of tort actions involving economic loss is
uncertain it is unclear whether the Court of Appeals views KRS
§ 452.460 as governing the venue of actions for injuries to rela106 62 S.W. 487, 489 (Ky. 1901). The Court reasoned that assumpsit was the
proper writ for malpractice, that assumpsit was ex contractu and transitory.
107 178 S.W.2d 404 (Ky. 1944).
108 Scott v. Farmers State Bank, 410 S.W.2d 717 (Ky. 1967).
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tional interests. KRS § 452.460 does not appear to cover any
relational torts other than those like defamation 19 and malicious prosecution'10 which affect the character of the plaintiff.
The Court has held, however, that wrongful death is an "injury
to person" within the meaning of KRS § 452.460.111 In so doing
the Court relied heavily on the fact that wrongful death has
consistently been held to be an "injury to the person" within the
meaning of the statute of limitations." In spite of dicta in later
cases that wrongful death is transitory," 3 it is probable that the
Court would today hold it to be localized by KRS § 452.460, even
though wrongful death conceptually is a relational tort; the relation harmed being that of the surviving spouse and children to
the person killed. There is a dearth of authority on the venue of
other relational torts, such as actions for damage to consortium,
alienation of affections, and interference with contract. It must
be assumed that the Court of Appeals would read KRS § 452.460
literally as excluding tort actions not involving injury to person,
property or character. Such a holding would isolate wrongful
death as the only relational tort maintainable under KRS §
452.460. It would further yield the unfortunate result of forcing
plaintiffs to the defendant-oriented transitory statute for redress
in a developing area of the law. The suggestion is made in Part
IV that the plaintiff always have the option of suing in the
counties in which the plaintiff's cause of action arose. The
adoption of such a proposal would cure the uncertainties and
potential inequity connected with the problems outlined herein:
economic loss, relational torts, civil injury to person or property
for which redress is sought on a contractual theory of liability.
It often happens that joint tortfeasors are sued for personal
injury or property damage. If the defendants reside in different
109 The statute clearly covers defamation and in fact limits the number of
forums available to plaintiff in libel actions.
110 Bowman v. Combs, 273 S.W. 719 (Ky. 1925).
11 Cottengim's Adm'r v. Adams' Adm'x, 255 S.W.2d 637 (Ky. 1953). In
Melton's Adm'r v. Southern By. Co., 33 S.W.2d 690 (Ky. 1930), relied on by the
Court in Cottengim's Adm'r, the Court construed similar language in the common
carrier statute as localizing wrongful death actions. In Melton's Adm'r the Court
added an interesting note: where the accident occurred in county A and death
in county B the injury took place for venue purposes in county A.
occurred
2
1
Cottengim's Adm'r v. Adams' Adm'x, 255 S.W.2d 637, 638 (Ky. 1953).
113 Both Stewart's Adm'x v. Bacon, 253 Ky. 748, 70 S.W.2d 522 (1934)
and Bankemper v. Boone County Aviation Inc., 435 S.W.2d 58 (Ky. 1968)
contain the statement that wrongful death is "transitory."
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VE-NUE OF Crn
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iN KENTucKy
counties the venue is proper as to both only in the county in
which the injury was inflicted. In Crume v. Taylor'-4 the plaintiff
argued that he should be permitted to rely on the statute governing transitory actions and maintain a multiple defendant tort
action in the county in which one of the defendants resided or
was summoned. The Court held that this was not a permissible
reading of the statute and that each defendant had a right to
insist that, as to him, the action be maintained in the county of
his residence or in which the injury occurred.i"
D. Transitory Actions
At early English common law all lawsuits were required to be
tried in the county where the cause of action arose, the function
of the jury being to decide the matter on the basis of personal
knowledge. 1 6 The courts at a very early time modified this rule
in fact, if not in form, by permitting the plaintiff to make a
fictitious allegation that the cause of action took place in the
county in which suit was brought when in fact it did not. The
allegation would be that the cause of action occurred in county A
(the county in which the cause of action in fact occurred), to wit
in county B (the county in which the suit was brought). The
courts then decided in which cases a denial (or in the parlance
of the day a "traverse") of this fictitious allegation would be
permitted. The courts thus distinguished between "local" actions
where the fictitious averment
could be denied and "transitory"
17
actions where it could not.
The basic distinction developed by the courts was between
causes of action which could only have occurred in one place
(usually involving land) which were classified as local, and causes
of action which could have occurred anywhere and which were
classified as transitory."8 The transitory action could be brought
114 S.W.2d 1119 (Ky. 1938).
115 Id. at 1120.
16 T. PLucN=, A CONCISE HISTORY
114
OF THE
COmmON
LAw,
1956).
127 (5th ed.
117 56 AM. Jur. Venue § 2, at 4 (1947); 1 J. MooRE, FEDERAL PRACTICE para.
0.142, at 1465 (2d ed. 1964). In Livingston v. Jefferson, 15 F. Cas. 660 (No.
8411) (C.C.D. Va. 1811), the action was for trespass to land in New Orleans and
the action was brought in Richmond, Virginia. Plaintiff prayed that the trespass
took place in the "city of New Orleans, district of Orleans, to wit at Richmond,
county of Henrico, and district of Virginia."
118 Livingston v. Jefferson, 15 F. Cas. 660, 664 (No. 8411) (C.C.D. Va.
1811); 56 AM. JuR. Venue § 3, at 5 (1947).
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KENTrucKY LAw JouRNAL
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only where the defendant was found. The basic unfairness to
the plaintiff (and in some instances to the defendant) of fixing
the venue of most actions in the county or district where the
defendant was summoned led many states, including Kentucky,
to "localize"
many actions which were transitory at common
9
law."1
In Kentucky the venue statutes localize actions according to
the nature of the subject matter (for example KRS § 452.400land), the nature of the defendant (for example KRS § 452.450corporations) and the nature of plaintiffs injury (for example
KRS §452.460-injury to the property, person or character of
plaintiff). The localizing statutes often take into account more
than one factor. KRS § 452.460, for example, is applicable only
to resident defendants who injure plaintiff's person, property or
character.
Actions not localized by KRS §8 452.400-452.475 are governed by KRS § 452.480,120 titled "Where Transitory Actions may
be Brought." This statute is the successor to the common law
transitory action and provides for venue in the county of the
defendant's residence as well as the county in which he is summoned. The statute's scope is negatively defined, "An action
which is not required by the foregoing provisions of KiRS §§
452.400-452.475 to be brought in some other county may be
brought .... -121 All of the statutes from KRS 88 452.400-452.475,
except two, use the mandatory "must" in designating the proper
venue of the action. The two exceptions, which use the permissive
"may", are KRS § 452.445, governing the venue of actions against
incorporated banks and insurance companies, and KRS §§ 452.475,
governing the venue of actions against public works contractors.
The fact that KRS § 452.445 has been construed to be cumulative
with KRS § 452.450 has already been discussed. Because KRS §
119 Wood v. Downing's Adm'r, 62 S.W. 487, 488 (Ky. 1901). See generally
Stevens, supranote 24, (noting at 315 that only three states, Tennessee, Mississippi,
and Pennsylvania,
adhere to the common law approach).
12
o An action which is not required by the foregoing provisions of KRS
§§ 452.400-452.475 (1971) to be brought in some other county may be
brought in any county in which the defendant, or in which one of several
defendants, who may be properly joined as such in the action, resides or is summoned.
12 1 See Crume v. Taylor, 114 S.W.2d 119 (Ky. 1938), specifically holding that
KRtS § 452.480 (1971), cannot be resorted to if the action is localized by one of
the preceding statutes.
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1972.]
VENuE oF CIvIL ACTIONS 3N
KENTUCKY
452.450, which uses the mandatory "must", is applicable to banks
and insurance companies there is no possibility of interplay
between KRS § 452.445 and KRS § 452.480. It is possible, on the
other band, to regard KRS § 452.475 as giving plaintiff the option
of suing a public works contractor in the county in which the
122
labor or supplies were furnished but not requiring him to do so.
Such a construction would mean plaintiff could, if he so desired,
proceed under KRS § 452.480 and file the action where the
defendant resides or is summoned. 12 This analysis illustrates
the arbitrariness of Kentucky's venue statutes and the fact that
venue questions will be determined in many cases by nothing
more profound than the drafter's choice between words he may
have thought of as synonyms-if he gave the matter any thought
at all. KRS § 452.480 forms a respository for actions not localized
elsewhere in the venue chapter. Notable examples of transitory
actions are contract actions against individuals,'12 4 claim and delivery of personal property, 125 actions for specific performance of
land contracts, 2 ( and controversies over leases.2
In the event of multiple defendants the venue is proper under
KRS § 452.480 in any county in which one of the defendants
resides or is summoned. All other venue statutes except KRS §
452.455, governing actions against common carriers, require the
venue to be proper as to all defendants. 28 It is possible that a
plaintiff might in either a transitory action or an action brought
under KRS § 452.455, name a straw man as defendant in order
to establish venue in a certain county. KRS § 452.490129 eliminates
122 Contra: Gillen v. Ill. Cent. By. Co., 125 S.W. 1047, 1048 (Ky. 1910)
(dictum).
.23 This assumes of course that in the case of a corporate contractor that
the Court would not construe KRS § 452.450 (1971) as cumulative to KRS
§ 452.475 (1971); in other words that the court would not extend the rule
of Ocean Accident and Guarantee Corporation v. Milford Bank, 33 S.W.2d 312
(Ky. 1930). As that case was bottomed primarily on the legislative history of the
code sections applicable to banks, insurance companies and corporations this is a
safe assumption.
124WIlliams v. Sanders, 168 S.W.2d 552 (Ky. 1942).
Cover v. Wheeler, 178 S.W.2d 404 (Ky. 1944).
GCaudill v. Little, 293 S.W.2d 881 (Ky. 1956).
125
12
127 Smith v. Wells, 112 S.W.2d 49 (Ky. 1937).
28
'
See Crume v. Taylor, 114 5.W.2d 1119 (Ky. 1938), where the plaintiff
unsuccessfully tried to rely by analogy on provisions for multiple defendant actions
in KRS
129H 452.455 and 452.480 (1971).
"In an action brought pursuant to KRS § 452.480, against several
defendants, no judgment shall be rendered against any of them, upon the service
of a summons out of the county in which the action is brought, if no one of them
(Continued on next page)
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this possibility for actions brought under IRS § 452.480.130 If
there are defendants not served or residing in the county in which
the transitory action is brought and they object to the venue at the
commencement of the actionas required by KRCP 12, the plaintiff
must succeed against the in-county defendant to hold the out-ofcounty defendants in the case. A dismissal of the action against
the in-county defendant for any reason and at any time will
render the venue of the whole action improper. In isolated cases
this may work an injustice to the plaintiff who has a meritorious
claim against an in-county defendant but loses on a jury verdict
(although succeeding against the out-of-county defendant). In
any revision of the statutes K.RS § 452.490 should be amended to
require the court to rule at the commencement of the action on a
timely motion, whether or not the plaintiff had named a defendant
solely to control venue.31 If the motion to dismiss is overruled
subsequent events could not render the venue improper.
There is another statutory quirk which must be discussed in
an analysis of transitory actions. Improper venue is a personal
defense and is waived unless raised in the proper manner. If the
defendant is subject to the personal jurisdiction of the court,
either because he is within the state or has minimum contacts
with the state, and is properly served with process, he is before
the court and a default judgment may be taken against him if he
does not defend. His defenses to the action, including any objection to venue, are waived by non-compliance with the Civil Rules.
If the action is transitory, however, KRS § 452.485132 spe(Footnote continued from preceding page)
be summoned in that county, nor resided therein when the action was commenced; nor if the action be discontinued or dismissed as to the defendant who
resided, or was summoned, in that county; nor if judgment be rendered in his
favor, unless a defendant summoned out of that county make defense without
objecting to the *urisdiction of the court: Provided that a judgment for a defendant, who resided or was summoned in that county upon a plea of his discharge
as a bankrupt, shall not prevent a judgment against any other defendant, in an
action brought before the commencement of the proceedings in which the discharge
was obtained; but after such judgment, upon a plea of discharge in bankruptcy, a
defendant not sunmoned in the county, nor residing therein at the commencement
of the action, may, by answer, deny the liability of such bankrupt. The issue as to
the original liability of such bankrupt shall be tried as if he were still a party, and
the plaintiff shall not have judgment against the defendant not summoned nor
residing in the county, unless it be decided that the bankrupt was originally liable."
130 It is apparently possible to create venue by naming a straw defendant in
an action brought against a carrier under KRS § 452.455 (1971).
:13 Stevens, supra note 24, at 320; cf. Omo R. Civ. P. 3(E).
132 "In action brought pursuant to KRS § 452.480, against a single defendant,
(Continued on next page)
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VENUE OF CivIL ACriONS IN KENTUCKX
cifically precludes a default judgment for failure to appear where
venue is improper. In Cash v. E'Town FurnitureCo.13 3 the Court
of Appeals held that KRS § 452.485 must be given effect in spite
of its seeming conflict with the waiver provisions of KRCP 12.08.
The Court reasoned that the statute prevailed because it was
retained by the legislature in 1952 at the time of the adoption of
the Civil Rules. This jurisdictional aspect of the statutes has been
severely critized' 34 but KRS § 452.485 may have a salutary effect
on the collection practices of retail creditors. Actions against
individuals on accounts or retail sales contracts are transitory
actions. They are also the kinds of actions most likely to result
in default judgments. A retail creditor might be tempted to file
all of its collection suits in one court without regard to the place
of residence of the debtors, having garnishments issued by the
court after taking default judgments. KRS § 452.485 makes this
practice unattractive by rendering the default judgment void on
collateral attack by the non-resident debtor or his employer when
the creditor attempts to satisfy the judgment."3 5
Venue based on the place of service of summons is unsound
for two reasons. First, the propriety of venue cannot be determined
at the time suit is fied because the plaintiff doesn't know whether
he will be able to serve the defendant in the county. Secondly,
the place where summons is served has nothing to do with the
subject of the action or the parties, other than that the defendant
happens to be in that county on the day he is served. As discussed in Part IV it is suggested this type of venue be abolished
and that the plaintiff always be afforded a choice of forums based
on: (1) the defendant's residence; (2) the situs of the defendant's
wrongful acts; and (3) the county in which the injury occurred.
Such a revision would totally supplant KRS § 452.480.
(Footnote continued from preceding page)
there shall be no judgment against him, unless he be summoned in the county
wherein the action is brought; or, unless he reside in such county when the action
is brought and be summoned elsewhere in this state; or, unless he make defense
to the action before objecting to the jurisdiction of the court."
'83 363 S.W.2d 102 (Ky. 1962).
184 Stevens, supra note 26, at 62, 63.
135 In Ohio the new rules are designed to discourage all deliberate choices of
improper venue by providing that the court may, before entering default judgment,
transfer the case to a county in which venue is proper with the defendant to
have additional time in which to answer. Omo R. Civ. P. 3(C) (3).
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III. MAJOR VENUE PROBLEMS NOT BELATED TO A SINGLE STATUTE
Part III of this paper is an analysis of the major venue problems
in Kentucky which do not involve interpretation of the statutes
themselves. Analyzed in Part III are the following problems:
(a) actions involving a non-resident or property outside the state;
(b) actions involving more than one claim or theory of relief;
(c) the problem of multiple defendants; (d) counterclaims,
cross-claims and third party complaints; (e) dismissals and the
statute of limitations; and (f) changes of venue. The emphasis
in Part III is an analysis of the existing situation. Reference will,
however, be made to the proposals suggested in Part IV.
A. Property or Person Outside the State
When either the defendant or specific property affected by the
action is outside the state, mixed questions of jurisdiction and
venue can arise. The basic rules are fairly simple. If the relief
sought is in personamthe Court must be able to assert jurisdiction
over the person of the defendant, either by personal service
within the state or by service pursuant to a 'long-arm" statute 36
which predicates jurisdiction on statutorily defined "minimum
contacts" with the state.'
There are usually special provisions
for the venue of in personam actions against non-residents. If the
relief sought is in rem the court must be able to assert jurisdiction
over the res either because of the physical presence of the res
within the state or because the res is presumed to be located at
the place of residence of the defendant.""8 The venue of in rem
actions is controlled by statutes fixing venue according to the
subject matter of the action rather than the type of defendant.
Thus whether the defendant is a resident or non-resident should
not affect the venue of an in rem action.
There are, however, uncertainties in the application of these
general rules in Kentucky. Kentucky has no statute regulating
the venue of in rem actions where the res is personal property.
There are also some doubts as to the applicability and constitutionality of Kentucky's long-arm statute. Furthermore prob13 6 See e.g., KRS § 454.210 (1971).
'37 Cf. International Shoe Co. v. Washington, 326 U.S. 310 (1945).
188 For example intangible personal property is presumed to be located at the
domicile of the owner for purposes of taxation by the state of domicile. See
generally 84 C.J.S. Taxation § 116 (1954).
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VENUE op-Civm AcrioNs iN KENTUCX
lems are presented by in personam actions involving real estate
39
outside the state by the famous case of Livingston v. Jefferson.3
In that case, decided in 1811, Judge Tyler and Chief Justice John
Marshall, sitting on circuit, held that Edward Livingston's action
for trespass to land against former President Thomas Jefferson
could not be maintained in Richmond, Virginia, where Jefferson
was amenable to process and was served, when the land was in
New Orleans in the territory of Louisiana.1 40 The court applied
English common law which required that actions for trespass to land be brought where the land was located." Actions
for trespass to land were classified as local rather than transitory,
and the court reasoned that such an action could be brought only
where the land was located, even though the relief was in personam and the defendant was not amenable to service at the
forum. Chief Justice Marshall applied the common law rule out
of respect for precedent even though he felt it to be illogical and
was cognizant of the fact that Livingston was without a remedy
unless he could obtain service on Jefferson in Louisiana. 42
In Kentucky all in personam actions are either transitory or
localized according to the nature of the defendant or plaintiff's
injury except trespass to land. Trespass to land must, according
to KRS § 452.400 (4), be brought in the county in which the land
is located, and this statutory provision appears to dictate the same
result as that reached in Livingston v. Jefferson: that proper venue
cannot be laid in an action for trespass to land if the land is
located outside the state. The Kentucky Court of Appeals, however, has exhibited a grudging attitude toward Livingston v.
Jefferson in a number of cases. In Campbell v. W.M. Ritter
Lumber Company'43 the Court held an action by a lessor against
a lessee to be transitory, reading Livingston v. Jefferson to be
restricted to cases where the defendant could challenge plaintiff's
title to the land (which a lessee could not, of course, do). In
Roberts v. Moss 4 4 the Court left the door open for a plaintiff, in
139 15 F. Cas. 660 (No. 8411) (C.C.D. Va. 1811).
140 Id.
41
See generally 1 MooRE para. 0.142 [2.-3] 1466-1472 (1964).
1 Doulson v. Matthews, 4 Term. Rep. 503, 98 Eng. Rep. 1143 (K.B. 1792).
See generally 1 Moorm para. 0.142 E2.-31, 1463-1466 (1964).
142 15 F. Cas. 664.
143 131 S.W. 20 (Ky. 1910).
'44 106 S.W. 297 (Ky. 1907). In Asher v. Cornett, 113 S.W. 131 (Ky. 1908),
(Continued on next page)
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a case of wrongful quarrying or timbering, to avoid Livingston v.
Jefferson by couching his prayer for relief in contract rather than
in tort. This would be accomplished by seeking damages according to the value to the defendant of the timber or minerals taken
(waiving the tort and suing in assumpsit). In Smith v. Southern
Railway Co.145 the Court held that an action could be maintained
in Kentucky for damage to realty located in Jellico County, Tennessee caused by an explosion across the state line in Whitley
County, Kentucky.146 These cases, in establishing means to avoid
Livingston v. Jefferson, indicate that the Kentucky Court would,
if forced to a decision, join the ranks of state courts which have
refused to follow Justice Marshalrs preference for precedent over
logic. 14 7 This would have the effect of limiting the applicability
of KRS § 452.400(4) to land located within the state.
If the defendant is a non-resident and not amenable to personal
service within the state"4" in personam jurisdiction may be asserted
pursuant to KRS § 454.210, Kentucky's modem long-arm statute,149
which provides for jurisdiction for injury caused by single wrong(Footnote continued from preceding page)
the plaintiff erred in framing his complaint in contract and suing in the county in
which the trees were cut. The court held the venue improper.
145 123 S.W. 678 (Ky. 1909).
146 In so holding the Court acknowledged the rule of Livingston v. Jefferson
but determined that the common law rule permitted a plaintiff to sue for trespass
to land either where the land was located
or where1909).
the wrongful act took place.
Smith v. Southern Railway Co.. 123 S.W. 679 (Ky.
147 Notable cases are Little v. Chicago, St. Paul, Minneapolis & Omaha Ry.,
67 N.W. 846 (Minn. 1896); and Reasor-Hill Corp. v. Harrison, 249 S.W.2d 994
(Ark. 1952). Annot., 30 A.L.R.2d 1213 (1953).
148 In Jones v. Campbell, 434 S.W.2d 653 (Ky. 1968), the Court held that
an action against a non-resident for personal injury was a transitory action with
venue fixed by KRS § 452.480, where the defendant was served with process in the
state.
149 There is a possibility that the Kentucky Court may construe KRS § 454.
210 to be limited to those situations in which in personam jurisdiction cannot be
asserted on the basis of previously enacted narrower long-arm statutes (infra note
156). This is what an Ohio trial court did to the Ohio statute in Hayslip v. Conrad
Produce Inc., 222 N.E.2d 839 (Ohio 1967). In that case the court held
that the venue of suits against non-resident motorists would continue to be
governed by the venue section (See. 4515.01) which localized auto accident
cases against residents and non-residents to the county in which the accident
happened in spite of the provision in the recently enacted long-arm statute
(Sec. 2307.384) calling for venue at the plaintiff's option in the count' of
his residence. This case has been legislatively overruled by the passage or the
Ohio Rules of Civil Procedure. Furthermore the Kentucky situation can be distinguished in that KRS § 452.460, controlling the venue of auto accidents, is limited
on its face to residents [a fact recognized by the Court of Appeals in Jones v.
Campbell, 434 S.W.2d 653 (Ky. 1968)], and because there is every reason to
believe the earlier and narrower long-arm statutes have been repealed by the
enactment of KRS § 454.210 (see text at footnotes 157 and 158).
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VENUE OF CrvL AcrIONS nV KENTUcxy
ful acts within the state, 150 as well as for jurisdiction for causes
of action attributable to the doing of business within the state.'55 '2
Kentucky's long-ann statute is very similar to that of Ohio
which was patterned after the Uniform Interstate and International Procedure Act.1 3 The Kentucky statute has been held
constitutional and given a liberal construction by a federal court 54
in a recent decision which is in accord with the trend toward
upholding jurisdiction over non-residents based on considerations
of fairness and minimum contacts rather than physical presence. 155
There are other Kentucky long-arm statutes'5 5 enacted prior
to KRS § 454.210 which may provide slightly different methods
for the service of process. 57 There is no need, however, to resort
to any of the previously enacted long-arm statutes, as KRS §
454.210 provides for jurisdiction in every situation covered by
the other statutes. There is, in fact, a positive danger in relying
on the narrower statutes, such as the non-resident motorist statute.
This danger arises from the fact that the legislature, at the time of
passage of KRS § 454.210, amended KRS § 454.165, which had
read "[n]o personal judgment shall be entered against a defendant
constructively served who has not appeared in the action," by
adding the words "except as provided in KRS § 454.210." The
effect of this amendment may have been to broaden the concept
of constructive service from service by warning order under
KRCP 4158 to include what formerly would have been defined
15 KRS § 454.210(3).
11KRS § 454.210(1), (2), (4), (5).
152 Omo REv. CODE § 2307.382 (1965).
The only difference being that
the Kentucky legislature added language to subsection 6 (liability for causes of
action arising out of an interest in, or the use or possession of real property within
the state) to make it clear that liability could not be imposed on the owner or
possessor of propert unless he voluntarily instituted the relationship. The Ohio
statute was held tobe constitutional as applied prospectively in Bruney v. Little,
222 N.E.2d 446 (Ohio 1966).
153 UmNFoB
INTERSTATE AND INTEBNATIONAL PROCEDURE AcT, § 1.03. See
also Comment, 35 CmN. L.J. 157 (1966).
154 Miller v. Trans World Airlines Inc., 302 F. Supp. 174 (E.D. Ky. 1969).
55 Annot., 27 A.L.R.3d 897 (1969); Annot., 20 A.L.R.3d 1201 (1968);
Annot., 78 A.L.R.2d 397 (1961).
IN0 KRS § 188.030-non-resident motorists, KRS § 271.610-non-resident
corporations, KIRS § 304.578-non-resident insurers, and KRS § 454.270-nonresident boaters.
157 KRS § 188.030 provides that the Secretary of State shall mail the defendant a copy of the summons; KRS § 454.210 provides that the process server
shall mail the summons.
158 KRCP 4 provides for service by warning order on non-residents, persons
absent from the state or avoiding process, and persons whose names or addresses
are unknown.
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as substituted service, i.e., service on a statutory agent. If this is
true all of the former long-arm statutes were implicitly repealed
by the amendment of KRS § 454.165 and the enactment of KRS
§ 454.210. Reliance on the procedure set out in the earlier statutes
may lead to a successful quashing of service of process.
The venue of actions brought pursuant to KRS § 454.210 is in
the county where the plaintiff resides or in which the cause of
action, or any part thereof, arose. 6 " A similar provision in Kentucky's original non-resident motorist act was held unconstitutional in Henry Fischer Packing Co. v. Mattox 60 as a denial of
equal protection of the laws to non-residents. The Kentucky
Court of Appeals reached its conclusion by reasoning that residents were not amenable to suit in the county of plaintiffs residence and to subject non-residents to suit there worked an unfair
discrimination. This case was criticized at the time16 ' and its
precedental value is seriously undermined by decisions from other
jurisdictions holding to the contrary on similar facts. In Lane v.
Hughes' 62 the Oklahoma Supreme Court upheld precisely the
same discrimination which Kentucky held unconstitutional in
Mattox. In Conner v. Willet 163 the Alabama Supreme Court held
that a non-resident of a state had no legally recognized interest
in having an action tried in a particular county within the state,
and that following the common law rule that a non-resident
could be sued in any county in the state did not work a denial of
equal protection of the laws. Much the same result has been
reached in Oregon 64 and Arkansas. 6 5 The recently enacted Ohio
Rules of Civil Procedure provide for venue in the county of the
159KRS § 452.450(4).
16090 S.W.2d 70 (Ky. 1936). The statute (Carroll's Code See. 12-2) provided
for venue in the county of the plaintiff's residence or in the county in which the
loss occurred. The holding in Mattox was reiterated in Kennedy v. Lee, 113
S.W.2d 1125 (Ky. 1938).
16 Comment, 26 Ky. L.J. 258 (1938).
162 408 P.2d 281 (Okla. 1965). The Court in Lane pointed out that in Power
Manufacturing Co. v. Sanders, 274 U.S. 490 (1927), relied on by the Kentucky
Court in Mattox, that the foreign corporation had registered to do business in the
state and had a fixed place of business. Hence there was no rational basis to discriminate between foreign and domestic corporations. In Lane, as indeed in Mattox, the non-resident had no county of residence in which he could be sued under
a statute fixing venue in part by the county of defendant's residence. There was a
rational basis for permitting plaintiff to sue in the county of his own residence.
168 91 So.2d 225 (Ala. 1956).
164 State ex rel. Blackledge v. Latourette, 205 P.2d 849 (Ore. 1948).
165 Bowsher v. Digby, 422 S.W.2d 671 (Ark. 1968).
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iN KNuCKY
defendant's residence if he is a resident of Ohio, and in the county
of plaintiff's residence if the defendant is a non-resident. 166 The
Kentucky Court when it is presented with the constitutionality of
KRS § 454.210(4) will in all likelihood follow other states in
holding the discrimination between residents and non-residents
to be on a rational basis; that the non-resident can be presumed
to have no interest in having the case tried in a particular county
and that all the statute does is to give the plaintiff a choice of
two counties, a choice which he would have were the defendant
7
a resident.
16
If the action is in rem and the res is located outside the state,
the general rule is that the court is without jurisdiction over the
subject matter and cannot proceed.'6 8 Kentucky cases are in
accord with this general principle.169 As noted in the discussion
of KRS § 452.400, however, the plaintiff can often accomplish
his goal involving out-of-state property by asking the court to
order the defendant to do something, rather than asking the court
to operate directly on the property. 70 The best example of this
is an action for specific performance which is held to be transitory
71
and maintainable where the defendant resides or is summoned. 1
When the res is within the state, it is logical that an in rem
action be brought in the county in which the res is located. When
72
the res is land, there is no question but that this is the rule.
The Kentucky statutes do not, however, appear to localize in rem
actions involving personal property, or cases in which status is the
166 Omo R. Civ. P. §§ 3(B)(1) and 3(B)(7) (1970).
167KRS § 452.460. In Conner v. Willet, 91 So.2d 225 (Ala. 1956), the Alabama court suggested that restricting the plaintiff to the county in which the cause
of action
arose would tend to discriminate against the plaintiff.
168 Fall v. Eastin, 215 U.S. 1 (1909). See generally F. JA.m&s, Crvm PRocEnuPE, 628-630 (1965).
169 Walden v. Johnson, 417 S.W.2d 220 (Ky. 1967) (child custody proceeding
is in ren and the child must be domiciled in the state); Birch v. Birch, 239 S.W.2d
483 (Ky. 1951) (action which was essentially to quiet title to land was improper
where the land was located outside the state); People's Nat Bank v. Jones, 61
S.W.2d 17 (Ky. 1933) (replevin action for personal property could not be maintained 0if the personal property were located outside the state).
17 See JAms, supra note 168 at 629; see also note 62. Equitable actions are
in personam and generally are not required to be brought in the county in which the
land lies.
56 Am. Jxn. Venue § 21 (1947).
171 McQuerry v. Gilleland, 12 S.W. 1037 (Ky. 1890) (action for specific performance of a contract to convey land situated in Iowa could be maintained in the
county in Kentucky where the defendant resided). For a recent application of
McQuerry,
see Caudill v. Little, 293 S.W.2d 881 (Ky. 1956).
2
17 KRS § 452.400.
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res (other than divorce which is localized by KRS § 452.470).13
In response to the absence of statutory direction the Court of
Appeals has held actions to foreclose on17 4 and recover 75 personal
property to be transitory, to be brought where the defendant
resides or is summoned. In Minary v. Minary,176 however, the
Court seems to have regarded a suit by a trustee for declaration
of rights in the trust to be localized at the situs of the trust corpus.
This is a reasonable position but seems to fly in the face of the
statutory pattern that actions not specifically localized are transitory. The conflict could be reconciled, if need be, by holding that
KRS § 452.480, the transitory statute, is permissive (it uses the
term "may be broughf') and that a court is not precluded from
creating additional forums by judicial decree.
Such a holding would of course, be the creation of venue by
court decision, outside the statutory pattern. The Court would
not, however, abuse its authority if it created venue rules to cover
gaps in the statutes. The common law of venue was after all the
result of court decision rather than legislation. Indeed, it appears
from the facts of the child custody cases that the venue of an
equitable action to determine the right of custody of a child is in
the county in which the child is domiciled. 77 There is no statute
localizing such actions, but it would be unjust to deem such an
action transitory, and the courts seem to have assumed that the
county in which the child is domiciled is the proper venue.1 8
If the defendant in an in rein action involving personalty or
status is a non-resident so that he is not amenable to personal
service, it is possible to conceive of service as taking place at the
forum, where the warning order attorney is appointed and makes
his report.179 This would mean that venue in a transitory action
"7 KRS § 452.470 localizes actions for divorce in the county of the wife's
residence if she has an actual residence in the state. If she does not, the venue lies
in the county of the husband's residence.
174 Ramey v. Weddington, 105 S.W.2d 824 (Ky. 1937).
175 Gover v. Wheeler, 178 S.W.2d 404 (Ky. 1944).
176 395 S.W.2d 588 (Ky. 1965). In this case the action was maintained in
the county in which the trust was located, but it is unclear whether the trust
involved realty or personalty or both.
177 Petrey v. Sampson, 184 S.W.2d 898 (Ky. 1945); Chamblee v. Rose, 249
S.W.2d 775 (Ky. 1952).
178 Jurisdiction over the subject matter depends on the child being a
domiciliary of the state. Walden v. Johnson, 417 S.W.2d 220 (Ky. 1967).
179 KRCP 4.07 requires the appointment of an attorney of the court as warmin
order attorney who is to attempt to notify the defendant of the nature and
(Continued on next page)
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would be proper against a non-resident in any county in which
the plaintiff chose to sue.180 KRS § 452.465, however, limits the
venue of actions against defendants proceeded against by warning
order to the county in which the defendant resided at the commencement of the action or in which he has property. As noted
in the discussion of I(RS § 452.400 the quasi-in-rem action is
obviously localized by this statute. It is difficult, however, to
consider a non-resident's beneficial interest in a trust corpus to
be within the statutory term "has property", and it is impossible
to consider a non-resident's interest in the status of a child to be
within that term. It is likely that the Court would, as suggested
above, fill in the gaps in the statutory pattern by holding venue
proper in the county in which the res is located.
The problems raised by the non-resident or property located
outside the state could be solved by simply making venue proper
in any county in which the res is located and in the county in
which the defendant resides, or, if the defendant is a non-resident,
in the county in which the plaintiff resides. This is basically the
proposal suggested in Part IV.
B. Actions Involving More Than One Claim or Theory of Relief
Prior to the adoption of the Rules of Civil Procedure in 1953
joinder of claims was regulated by Section 83 of Carroll's Code'
which restricted joinder to claims which could be brought independently in the same county and which further restricted joinder
to the same kinds of claims. For example, actions in contract and
tort could not be joined under Section 83. The plaintiff with
(Footnote continued from preceding page)
pendency of the action and to report to the court within 50 days. There is no
requirement that the defendant actually receive notice. KlCP 4.08 provides that
the defendant "shall be deemed to have been summoned on the 30th day after the
entry of a warning order."
8oThis appears to have been the common law rule. Conner v. Willet, 91
So.2d 225 (Ala. 1956); Bowsher v. Digby, 422 S.W.2d 671 (Ark. 1968).
181 "Causes of action may be joined. Several causes of action may be united,
if each affect all the parties to the action, may be brought in the same county, and
may be prosecuted by the same kind of action, and if all of them be brought:
1. Upon contracts, express or implied; or,
2. For the recovery of real property and the rents, profits and damages for
taking or withholding it; or,
8. For the recovery of specific personal property, and damages for the
taking or withholding it; or,
4. For partition of real or personal property, or both; or,
5. For injuries to character; or,
6. For injuries to person and property."
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alternate theories of liability in contract and tort was required to
elect the theory under which he would prosecute the action. 2
The Kentucky Civil Code Committee in their draft of rules
of procedure 8 3 proposed that the pleader be permitted to join in
his complaint or counterclaim as many claims as he had against
the opposing party, even though the claims might be unrelated
conceptually (as required by the old code) or functionally, in the
sense of arising out of the same transaction or occurrence.'8 The
Civil Code Committee knew at the time that the sections of Carroll's Code governing venue were to be transposed intact to the
Kentucky Revised Statutes. Those venue sections had of course
been enacted at a time when the joinder section of the code
required that venue be proper as to each claim of a multiple
claim action, and there was no provision in the venue code itself
providing for venue in a multiple claim action. Furthermore the
venue sections, in the spirit of restrictive joinder, classified actions
according to the pleader's concept of liability or injury and set
rules accordingly for the maintenance of actions. The Civil Code
Committee apparently recognized the potential conflict between
the liberality of proposed KRCP 18.01 and the conceptual rigidity
of the venue sections for they included the following in their
comments to the proposed rule:"8 5
Civil Code Section 83 also requires that actions can only be
joined which may be brought in the same county. This is an
additional bar to joinder and we have considered that the
proper rule should be that if there is venue of one claim it
would support the venue of all other claims. There should be,
however, a power of the court to transfer claims to other courts
where the forum is more convenient and where some fundamental policy of venue requires its trial in that county. This
power of the court should be discretionary.
At the same time, however, the committee proposed KRCP
82 to provide, "These rules shall not be construed to extend or
limit the jurisdiction of any court of this Commonwealth or the
182
Hovermale v. Cent. Ky. Natural Gas Co., 282 S.W.2d 186 (Ky. 1955).
Kentucky Rules of Civil Procedure Tentative Draft, prepared by Kentucky
Civil Code Committee (undated, on file University of Kentucky Law Library).
183
184
Kentucky Rules of Civil Procedure Tentative Draft, 64-65-proposed rule
18.01.
185 Kentucky Rules of Civil Procedure, Tentative Draft, 66.
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venue of actions therein,"
86 and
commented as follows:187
Proposed Rule 82 is based upon Federal Rule 82. None
of the proposed rules attempts a statement in regard to jurisdiction or venue, ... [T]he adoption of such a rule as Rule 82
is almost essential to the Code Committee which was enjoined
from abridging, enlarging, or modifying substantive rights of
litigants. Chapter 151, Acts of 1950. The possibility of some
given rule being construed as altering the existing law relative
to jurisdiction or venue is precluded.
At this point the General Assembly of 1952 passed enabling
legislation 88 to permit the Court of Appeals to promulgate, from
time to time, civil rules with the initial rules to be promulgated
by and to be effective on July 1, 1953. Pursuant to this act the
Court of Appeals promulgated the Rules of Civil Procedure. To
the proposed rule governing joinder of claims, KRCP 18.01, the
Court added the following sentence: "The right of a plaintiff to
join claims in his complaint is subject to the statutes governing
venue." The original committee note indicating that the proper
venue of one claim would support the entire action was not
modified, however, and appears today in Baldwin's edition of the
Kentucky Revised Statutes. 89
It was clear to others,'0 however, that the venue of all claims
in a multiple-claim action had to be proper under KRCP 18.01.
Watson Clay commented on KRCP 18.01 as follows: 191
The last sentence of this Rule was added to make it clear
that the joinder by the plaintiff of independent claims was
subject to the possible objection of improper venue. Rule 82
perhaps adequately preserves this objection but this Rule
emphasizes that the plaintiff may not as a matter of right
join actions without a common venue.
Under our present venue statutes, apparently these Rules
would not authorize a plaintiff, by joining independent claims,
to deprive the defendant of his possible objection that one or
186 Kentucky Rules of Civil Procedure, Tentative Draft, 237.
187 Id.
188 KRS § 447.151 (1971).
189-7 Baldwin's Kentucky Revised Statutes, Rules of Civil Procedure, 54
(1969).
190 Note, Joinder of Claims, Counterclaims, and Crossclaims as Affected by
Venue Statutes of Kentucky, 43 Ky. LJ. 274, 275-77 (1955).
191 6 W. CLAY, K.'TucKy PRACTICE 310-311 (1963).
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more claims must be asserted in actions brought in a different
county.
In 1966, FRCP 18 (a), after which KRCP 18.01 was patterned,
was amended to eliminate all reference to Rules 19, 20 and 22
and now simply provides:
A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as he has against an opposing party.
This change was effected to eliminate confusion caused by
9 2 which had imFederal Housing Administration v. ChristiansonP
posed on joinder of claims the restrictions on permissive joinder
of persons found in Rule 20.113
In 1969 the Court of Appeals of Kentucky amended KRCP
18.01 to read like FRCP 18(a) with the omission of the word
"maritime". The sentence pertaining to venue was eliminated.
Clay's comment to the amended Rule states in part: 94
The references in the original Rule to Rules 19, 20 and 22
had apparently led to unintended restrictions upon joinder of
claims. Joinder may present trial problems but it should not
present pleading problems. The amended Rule simply permits
unrestricted joinder of claims in a pleading.
What then is the position of the Kentucky Court of Appeals
toward the venue of multiple-claim actions? Is it that the venue
of each claim must be proper, as was required prior to 1953?11
Is it, as suggested in the original comment of the Civil Code Committee, that venue as to one claim supports venue as to all other
claims? Or does the Court occupy a middle position-that related
claims may be prosecuted together if the venue of one of them is
proper but that independent claims must each have a proper
venue?
As KRCP 18.01 is based on FRCP 18(a) it is pertinent to
examine Federal cases which have considered the problem.
F.Supp. 419 (D. Conn. 1939).
193 See Committee Note of 1966, 3A MooRE para. 18.01[3], at 1812-1914
19226
(1970).
43 (Supp. 1972).
1 Folden v. Shelton, 226 S.W.2d 531 (Ky. 1950); Comment, 43 Ky. LJ. 274,
194 6W. CLAY, KENTUCKY PRACTICE
95
275(1955).
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FRCP 18(a) permits free joinder of claims and the Supreme
Court has, in several landmark cases dealt with the problem of
the multi-claim action where one of the claims lacked a jurisdictional basis in the federal courts. In Hum v. Ousler' the Supreme Court held that where there is only one cause of action
and jurisdiction is based on a federal question, that is, on the laws
or Constitution of the United States, two or more grounds for
relief may be urged, even though one or more of the grounds is
based on state law and hence could not be sued on independently
in Federal Court. 197 In United Mine Workers v. Gibbs' the
Supreme Court rejected the term "single cause of action" and
held that it was proper for a federal court to consider a nonfederal claim with a federal claim if the claims involved a "common nucleus of operative fact', that is, were so related that the
plaintiff would be expected to try the claims in one judicial proceeding. 9 9 If a nonfederal claim can be adjudicated with a related
federal claim under the pendent jurisdiction doctrine of United
Mine Workers v. Gibbs the nonfederal claim should not be required to have proper venue. If an independent jurisdictional
basis is not required, independent venue certainly should not be
required; the venue of the federal claim should suffice for the
201
20 9
whole case. This is supported by commentators and case law.
Similarly if two related federal claims are joined under FRCP
18(a) the proper venue of one federal claim will support the
other. 202° If unrelated, however, the treatises 20 3 and at least one
case 20 4 take the position that the venue must be proper as to each
claim. Claims are only required to have a loose factual connection
205
to be considered related for jurisdictional or venue purposes..
The Kentucky Court of Appeals, when faced with the neces196 289 U.S. 238 (1933).
397 3A MooRE para. 18.07 [L.-2], at 1921 (1970).
198383 U.S. 715 (1966).
'O9 Id. at 725.
200 See e.g., 7 MooRE para. 0.140[5], 1334 (1964).
201 See e.g. Carolyn Chenilles, Inc. v. Ostow & Jacobs, Inc., 168 F.Supp. 894
(S.D.N.Y. 19585 (proper venue as to patent infringement claims supported venue
of state claim of unfair competition).
202 Ferguson v. Ford Motor Co., 77 F.Supp. 425, 436 (S.D.N.Y. 1948).
2
03 3A MooRE para. 18.07[1.-1], 1960 (1970); 6 C. WiGa-r and A. MIro.m,
FEDERAL. PRACTICE AND PROCEDURE § 1588 at 817 (1971).
204 Locke Manufacturing Company v. Sabel, 244 F.Supp. 829 (W.D. Ky.
1965).
205 C. Wniomaand A. MILER, supra note 203, § 1588 at 1811-12 (1971).
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sity of deciding the proper construction of KRCP 18.01, should
follow the lead of the federal courts and make the test, as to
whether independent venue is required of a claim, one of the relationship to the claim with proper venue. Such a position would be
consistent with the Kentucky cases prior to 1953206 which held that
relief incidental to the main action could be granted without regard to venue, and would not do violence to the spirit of KRCP
82, which attempts to limit the impact of the Civil Rules on
matters of jurisdiction and venue. It would also be consistent
with recent cases from other jurisdictions. °7
This analysis does not, however, answer all of the venue questions which arise in multi-claim actions. The discussion above
assumes that the multiple claims either represent separate causes
of action or alternate and equally serious theories of relief for the
same cause of action. It further assumes that there is no legislative
policy favoring one venue statute over another. The analysis to
be complete must take into account the following reflnements.
The cases seem to hold that where a multi-theory complaint can
be said to primarily be a certain kind of action then that type
of action determines the propriety of the venue. The cases also
take into account, in close cases, legislative policy favoring one
venue statute over another.
Examples of cases measuring the propriety of venue according
20 8
to the primary objective of the plaintiff are: Meredithv. Ingram
in which the Kentucky Court held an action for waste by a
remainderman to be primarily one for injury to real estate, as the
main theme of the complaint sounded in tort, even though there
was an alternate allegation of unjust enrichment; Jarvis v. Hamilton20 9 in which the Idaho court held an action to be primarily
one for an accounting and therefore transitory, even though
possession of the partnership real estate (located out of the
206 Crawford v. Crawford, 149 S.W.2d 778 (Ky. 1941); Cox v. Simmerman,
98 S.W.2d
915 (Ky. 1936).
20
7 Ellsworth v. Layton, 397 P.2d 450 (Ariz. 1965) (three separate causes of
action all involving agreements by which plaintiff was to raise cattle on defendant's
property; proper venue as to one cause established proper venue for entire action).
Twin Lakes Reservoir and Canal Company v. Bond, 899 P.2d 793 (Colo. 1965)
(causes of action to quiet title and for breach of contract in failing to procure
the release of a mortgage-proper venue for the quiet title action established proper
venue for the other claim arising out of the same set of circumstances).
208 444 S.W.2d 551 (Ky. 1969).
209 246 P.2d 216 (Idaho 1952).
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VENUE oF CivIL ACTIONS IN KENTrucKy
county) was asked for; and Beavers v. Rankin 1 in which the Montana court held an action for release of an oil and gas lease
encumbering real estate to be primarily local even though damages were asked for. The Texas court looked to plaintiffs purpose in McFarlingv. Cavender21 and concluded it was to recover
insurance premiums and that the plaintiff's insistence that he was
also interested in recovering on the policy was ingenuous. Texas
law, the court said, required a look at the whole suit to ascertain
the primary or dominant purpose of the litigation.212 From these
authorities, it can be concluded that a court will scrutinize a
complaint to determine what the plaintiffs real objective is and
rule on a motion to dismiss for improper venue accordingly. In
the event plaintiff has two or more genuine claims, however, either
claim can establish venue.
It is also possible that there is a legislative or judicial policy
favoring one venue statute over another and, if so, this policy must
be taken into account. In California, for example, the defendant
has a right to insist that transitory actions be tried in the county
of his residence and the joining of a local action involving land
cannot defeat that right." 3 In Missouri, on the other hand, actions
involving the title to real estate are to be tried in the county in
which the land is located and the joining of a transitory cause of
action cannot defeat that right.21 4 California deems it important
that a person be able to defend in the county of his residence;
Missouri deems it more important that land cases be tried where
the land is located.
As discussed above the federal courts hold that proper venue
as to one claim will support the venue of the entire action if the
claims are factually related. In Bradford Novelty Co. v. ManheiM, 215 however, a federal district court had the opportunity to
apply this general principle to an action for related counts of
patent infringement and unfair competition. The venue statute
for patent infringement limits venue to the district of the defendant's residence or the district in which the infringing acts
210 885 P.2d 640 (Mont. 1963).
211 469 S.W.2d 478 (Tex. 1971).
Id. at 480.
All-Cool Aluminum Awning Co. v. Superior Court, 36 Cal. Rptr. 769 (Dist.
Ct. App. 5 1964) (citing cases).
214 Skatoff v. Alfend, 411 S.W.2d 169 (Mo. 1967).
215 156 F.Supp. 489 (S.D.N.Y. 1957).
212
213
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occur; in this case venue could not be independently laid in the
Southern District of New York. Unfair competition, however, is
regulated by the general venue statutes and is proper in any district in which the defendant is doing business; venue as to the
unfair competition count was proper in the Southern District of
New York. The court held that the intent of Congress was to
narrowly fix the place of trial of patent infringement cases and
that this intent would be frustrated by pendenting the patent
claim to the unfair competition claim.2 10 Furthermore, the court
argued, the dominant purpose of the suit was one of patent
infringement. The court then transferred the whole case to the
Eastern District of New York where the venue was proper as to
the patent infringement count.
In Bradford Novelty Company the court looked both to the
dominant or primary purpose of the suit and to the legislative
policy expressed in the venue statutes. This is a sound approach.
Certainly Kentucky courts have attempted to ascertain the primary
objective of the suit in venue problems. What of the test of ascertaining legislative purpose? Are there ascertainable legislative or
judicial policies in Kentucky to guide courts in resolving close
venue questions? Certainly it is logical to give effect to a venue
statute attached to a body of substantive lawin the event of conflict
with the venue statutes of Chapter 452. Thus KRS § 406.151, permitting a mother to file a paternity suit in the county of her residence should be given effect over KRS § 452.460 or 452.480. Within
Chapter 452 itself the statutory pattern gives some guidance.
The four statutes of general application, discussed in detail in
Part II of this paper, indicate the order in which they, and other
statutes in Chapter 452, are to be consulted. KRS § 452.450, for
example, excepts actions required to be brought against corporations by the more specific sections of the chapter. 17 It does not,
however, except actions required to be brought under KRS §
452.460. KRS § 452.460, on the other hand, excepts "every other
action", indicating actions covered by preceding sections includ216 Id. at 491-92. See also Swiss Israel Trade Bank v. Mobley, 319 F.Supp.
374 (S.D. Ga. 1970); strong policy in favor of localizing actions against banks to
district where bank is established precluded impleading a bank in another district
on theory
of ancillary jurisdiction.
2
17KRS §§ 452.400-452.420 inclusive, KRS §§ 452.430, 452.440, 452.445,
452.455, 452.465 and 452.475.
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ing KRS § 452.450. KRS § 452.480 provides for the venue of "an
action which is not required by the foregoing provisions of KRS
§§ 452.400-452.475 to be brought in some other county.... ." Moreover, there is some indication that KRS § 452.400 is to be given
218
precedence over the statutes regulating distribution of estates,
and from this it might be concluded that KRS § 452.400 is to be
given precedence over other statutes in the chapter.
However, the statutory pattern should not be overly emphasized. For example, the Court does not seem to have respected
KRS § 452.400 more than KRS § 452.480. Timbering and quarrying cases have been classified as transitory.219 Furthermore, on
at least one occasion the Court of Appeals has erroneously
ignored the provisions of KRS § 452.450 in favor of 452.480.220
On the other hand the Court has ignored the relational nature of
wrongful death and classified it as an action for "injury to the
person", governed by KRS § 452.460 rather than KRS § 452.480.221
An analysis of the cases does not indicate any overriding policy
in Kentucky in favor of any criteria for fixing venue, as, for
example, exists in California.
In summary a court should, under the present law, determine
the propriety of venue in unclear cases by application of the
following tests: (1) Does the plaintiff have a primary objective
so that his other claims may be considered subsidiary and, if so,
what is that objective? (2) Is there any ascertainable legislative
or judicial policy, such as a statute attached to the substantive
law, indicating where the venue of the action should lie? and (8)
If the plaintiff has more than one primary objective so that the
plaintiff's complaint may be regarded as stating separate causes
of action or separate serious grounds for the same cause, are the
claims factually related or not? In applying this last test the court
should use the same standards used for determining compulsory
counterclaims and matters proper to be raised by cross-claim:
does the claim where venue is not independently proper arise out
of the same transaction or occurrence as does the claim where
venue is proper?
218 Meredith v. Ingram, 444 S.W.2d 551 (Ky. 1969); Cox v. Simmerman, 98
S.W.2d 915 (Ky. 1936), Annot., 93 A.L.R.2d 1199, 1209, 1211 (1964).
219
See text, supra note 144.
22
0 Holcomb v. Kentucky Union Co., 90 S.W.2d 25 (Ky. 1936).
221 See text, supra note 111.
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There is a postscript to this analysis. It appears from an
examination of the cases222 that Kentucky courts have resolved
close venue questions in favor of the plaintiff. Much of the seeming conflict in decisions may be due to a reluctance to dismiss a
plaintiff's case for improper forum. On the other hand if the
place of trial is of importance to the defendant, which is assumed
by this article and by most venue statutes, it is not fair to give
independent weight to the plaintiffs choice of forums. It is fairer
to apply the objective tests set out above without regard to the
fact that a resolution of improper venue will mean dismissal of
plaintiff's case.
The Ohio venue rules, relied on heavily herein as a suggested
guide for Kentucky, do not require an elaborate analysis of venue
in multiple claims actions. If venue is proper as to one claim
venue is proper for the whole action. 23 The unspoken premise
is that the defendant has no particular interest in the location
of litigation of particular claims; that if he is in a court on one
claim he may as well be in court for all. This premise is unsound,
as is aptly demonstrated by the analysis of third-party complaints.
The defendant does have an interest in the trial of particular
claims in particular forums, that being an interest that the forum
be convenient to him and that the judge and jury be at least as
fair to him as they are to his opponent. If the venue of one claim
is to establish proper venue for the whole action, the statute or
code section, for the protection of the defendant, should include
a provision for transfer to a more convenient forum. This was
suggested in the original note to Kentucky's Rule 18224 and was
part of Professor Miller's proposal to the Ohio legislature preceding the adoption of the Ohio rules of civil procedure.22 5 Such
a provision was not, however, adopted in Ohio and is not recommended by this article. Instead the proper venue of one claim
if it is more than a nominal or make-weight claim, should establish
the proper venue for all related claims, with "related" defined
222
For example Meredith v. Ingram, 444 S.W.2d 551 (Ky. 1969) (conflict
with KRS § 452.415); Cox v. Simmerman, 98 S.W.2d 915 (Ky. 1936) (conflict between22KRS
§§ 452.400 and 452.420).
3
Omo R. Crv. P. 3(E).
22 4
See text, supra note 185.
22
5 R. Miller, Implementing Current Theories of Jurisdiction,Venue, and Service of Process-Proposalsfor Revision of the Ohio Statutes, 29 Oo ST. LJ. 116,
148-149, 161-162 (1968).
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as "arising out of the same transaction or occurrence."
proposal is expanded in Part IV of this article.
This
C. Multiple Defendants
Improper venue is a personal defense and each defendant
has the right to insist that venue be proper as to him.2 26 This is
true even if the defendant to whom venue is not proper could be
227
classified as a necessary or indispensable party to the action
and even if there is no county in which both defendants can be
sued (a possible but highly unlikely situation). Part IV recommends that venue continue to be recognized as a legitimate
personal defense and that the plaintiff be required to choose a
forum where venue is proper as to all.
D. Counterclaims,Cross-claims,and Third Party Complaints
1. Counterclaims
The plaintiff originally chooses the forum and should be
deemed to have waived any objections he has to the venue of
matters which can be asserted against him by counterclaim,
either mandatory or permissive. The Supreme Court so held in
1932228 and there seems little doubt but that the Kentucky Court
would so hold if presented with the opportunity.229
2. Cross-claims
A cross-claim by a defendant against a co-defendant must
arise out of the same transaction or occurrence that is the subject
matter of the original complaint or a counterclaim to the complaint.so As such it can be considered ancillary to the original
complaint with no independent venue requirement.23 ' The Kentucky Court of Appeals has so held in Licking River Limestone
Co. v. Helton.232 In Helton the defendant inadvertently waived
22
6Crume v. Taylor, 114 S.W.2d 1119 (Ky. 1938); text at note 114 supra.
227 KRCP 19.01 (Persons to be Joined if Feasible) provides that, after it is
determined that a party should be joined and is in fact joined, if he objects to the
venue of the action and his joinder would render the venue improper he shall be
dismissed from the action.
228 General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430 (1932).
229 Note, 43 Ky.L.J. 274, 278-79 (1956); 6 W. CLAY, KENTucxy PRACTiCE, 231
(1963) [hereinafter cited as CLAY].
230 KRCP 13.07.
2313 MooRE para. 13.36 (1968).
232 413 S.W.2d 61 (Ky. 1967).
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the defense of improper venue to the original action and the
Court held it could not then object to the venue of the cross-claim.
3. Third-PartyComplaints
KRCP 14 permits a defendant to implead a party who is or
may be liable to him for all or part of the plaintiff's claim. Can
the impleaded party, or, in the nomenclature of the Rules the
third-party defendant, raise a defense of improper venue? This
question raises more problems than do the questions of counterclaim and cross-claim. The third-party defendant is being brought
involuntarily into an action where venue is not proper as to him on
any claim. There is an obvious analogy to the case of co-defendants,
where it is clear venue must be proper as to both. At the time of the
adoption of the Civil Rules in 1953 there was considerable uncertainty on this matter. 8 The Court of Appeals resolved these
doubts in 1967 in Goodwin Brothers v. Preferred Risk Mutual
Insurance Company234 holding that the third-party complaint for
contribution or indemnity need satisfy no venue requirements.
In so holding the Court stressed the need to avoid multiplicity
of actions and followed federal cases which had held that a thirdparty complaint could be considered ancillary to the main action. 235 The Court here considered and rejected the argument
that this construction of KRCP 14 violated the spirit and letter of
K.RCP 82.
While it is clear that there is no venue requirement for the
third-party complaint for indemnity or contribution, two other
problems remain unanswered. First is the problem of the plaintiff's claim directly against the third-party defendant. The Rules
permit a plaintiff to assert a claim against the third-party defendant arising out of the transaction or occurrence that is the subject
matter of the original complaint.8 Suppose that Wife (W) is
a passenger in Husband's (H's) car and both are residents of
A county. W is injured in a collision between the car of H and
that of X, a resident of B county. The accident takes place in B
Note, 43 KY. L.J. 274, 279-283 (1955); 6 CLAY 251 (1963).
234 410 S.W.2d 714 (Ky. 1967).
235 410 S.W.2d 716. But see Lemmon Pharmacal Co. v. Richardson 319
23
F.Supp. 375 (E.D. Pa. 1970) (third-party complaint could not be filed against a
national bank other than in the district prescribed under the Banking Act).
286 KRCP 14.01.
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county. If W wishes to sue H and X jointly she must proceed in
B county, the county in which the accident took place and in
which, incidentally, one of the defendants lives. Suppose W sues
only H and files the action in A county. The venue is proper as to
H as that is the county of his residence. H now can file a thirdparty complaint for contribution against X on the authority of
Goodwin Brothers.
With the pleadings in this posture W can recover only against
H, with H entitled to contribution from X in the event of a
determination that X is a joint tort-feasor. But W cannot recover
from either H or X in this action on a determination that only X
is at fault. This is because W has asserted no claim directly against
X and X can only be held liable for sums which H is required to
pay W. To guard against this possibility (and the further possibility of losing to X in a later independent action) W will
likely file a claim directly against X. Should X then be able to
raise the defense of improper venue?
The treatises237 and most of the cases 238 hold that, for venue
purposes, the plaintiff's claim against the third-party defendant
can be considered ancillary. The same authorities hold, however,
that an independent jurisdictional base is required. 2 9 The distinction is made on the theory that circumvention of subjectmatter jurisdiction requirements would be made possible by
treating the plaintiff's claim as ancillary for jurisdiction. In the
example above suppose W and X are residents of the same state
and the original basis for federal jurisdiction is diversity between
W and H. To permit W to sue X directly after X is brought into
the action by H would subvert the statutory requirement of complete diversity between plaintiffs and defendants. Venue on the
other hand is a matter of personal convenience to the litigants.
The third-party defendant is already in the action, so the argument goes, and it does not seriously inconvenience him to require
him to defend the plaintiff's claim as well as the third-party
24
plaintiffs claim. 0
237 C. WnxcT &A. MLLER, FEDmAL PRACncE A
lNDrPocmuE, § 1445 at 244
(1971);
3 MooRE para. 14.28[31] at 745 (1968).
23
S Thompson v. United Artists Theatre Circuit Inc., 43 F.R.D. 339 (S.D.N.Y.
1967); Bonath v. Aetna Freight Lines Inc., 33 F.R.D. 260 (W.D. Pa. 1963);
Contra Hadina v. M. A. Henry Co., 8 F.R.D. 52 (S.D.N.Y. 1948).
239 3 MooRE para. 14.27[1], at 721 (1968).
240 3 MooRE para. 14.27[1], 722-723; 14.28[31,
at 745 (1968).
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It seems, however, that if a plaintiff is not to be permitted to
circumvent jurisdiction requirements by sharp use of Rule 14 that
he should not be able to evade venue requirements either. In the
example above if W is permitted to Mle against X after X has been
impleaded by H the result is exactly the same as if W had sued
H and X together in the first place. X is now forced to defend
W's suit in a county where he could have secured a dismissal for
improper venue had he been originally named as a defendant.
This is an illogical and unjust result which the Kentucky Court
can avoid by restricting the concept of ancillary venue to those
matters necessary to fully dispose of W's claim against H and to
guard H against the expense and trouble of a separate action for
contribution.
The second problem left unanswered by Goodwiu Brothers
is the problem of the affirmative claim by the third-party plaintiff
against the third-party defendant. In the example above suppose
that H was also injured in the accident. Should he be able to
implead X for contribution and join with the contribution claim a
claim for his own injuries? It is somewhat startling, in light of the
purpose of Rule 14,241 to find that the Rules apparently permit the
joinder of affirmative claims to the claim for contribution or
indemnity. This seems to be the result dictated by KRCP 18.01,
which permits free joinder of claims by a party asserting a claim
to relief as an "original claim, counterclaim, cross-claim, or thirdparty claim." Unlike KRCP 18.07,242 governing the assertion of
cross-claims, there is nothing in KRCP 14 limiting the kinds of
claims which may be asserted against a third party. The treatises
take the position that an affirmative claim, even an unrelated
affirmative claim, can logically be joined under Rule 18 to the
third party complaint for contribution or indemnity.243 In Noland
Company v. Graver Tank and Manufacturing Company244 the
24
1 Which is to save the original defendant the expense and delay of trying a
separate action for contribution or indemnity. 3 MooRE para. 14.04, at 501-02
(1968).
242 KRCP 18.07 limits matters which can be asserted in the initial cross-claim
to matters arising out of the same transaction or occurrence that forms the basis of
the original complaint or counterclaim.
243 6 Wmcrrr & MIILER § 1452, at 287; 3A MooRE para. 18.04[4] at 1876-77
(1970). Moons apparently further takes the position that unrelated affirmative
claims can be asserted by way of cross-claim but this seems to fly in the face of the
limiting language of FRCP 13(g) (which is identical to KRCP 13.07).
244 301 F.2d 43 (4th Cir. 1962).
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United States Fourth Circuit Court of Appeals expressly held that
an affirmative claim arising out of the same transaction as the original action could be litigated under Rule 14. The court stressed the
fact that substantially the same proof would be required as in the
main action; it did express the belief that a court should have the
discretion to reject an affirmative claim which would unduly
complicate the issue. There are no cases to be found holding
that unrelated claims can be asserted in a third-party complaint,
although this is warranted by the wording of Rule 18. The defendant must generally obtain leave of the court to file a thirdparty complaint 45 and it is unlikely that a court would permit the
filing of a third-party complaint which contained a totally unrelated claim. It is quite likely, however, that a court would consider an affirmative claim arising out of the same transaction that
formed the basis for the plaintiff's suit to be a proper matter for
litigation with the original action. Should the impleaded party
be permitted to assert the defense of improper venue?
It is submitted that he should for the same reason that he
should be able to insist that venue be proper as to any claim of
the plaintiff against him. He would have been able to have the
affirmative claim dismissed for improper venue had it been filed
as an original complaint. The result should not be changed
simply because the claim is asserted by way of joinder with a
third-party complaint for contribution. In Schwab v. Erie Lackawana Railroad Company24 a federal court rejected the argument that an affirmative third-party complaint could be considered
ancillary for jurisdictionalpurposes with the pithy remark, "Once
the camel (meaning the lawsuit) gets his nose under the tent,
we would have to make room for the entire animal, including its
pendent fleas." On appeal, however the Third Circuit reversed,
holding that the affirmative claim could be considered ancillary
to the third-party complaint for contribution and indemnity
which was itself ancillary to the main action. 47 The appellate
court's main concern was judicial economy; it was willing to bend
245 FRCP 14(a) permits the filing of a third-party complaint without leave of
court within 10 days of the service of the original answer. KRCP 14 requires leave
of court at all times.
24648 F.R.D. 442 (W.D. Pa. 1970) rev'd, 488 F.2d 62 (3d Cir. 1971); cf.
Gerhardt v. Edgar, 251 F.Supp. 678 (W.D. Pa. 1966).
247 Schwab v. Erie Lackawana Railroad Co., 488 F.2d 62 (3d Cir. 1971).
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jurisdictional rules accordingly. Undoubtedly the Third Circuit
would reach a similar result if the venue of the affirmative claim
were improper, sacrificing the third-party defendant's personal
defense to an overriding goal of judicial economy. It is submitted
that the trial court in Schwab was right and the appellate court
wrong; jurisdictional limitations and personal defenses should not
be ignored or circumvented so that all facets of a dispute can be
tried in one action. The concepts of ancillary jurisdiction and
ancillary venue should be restricted, in the third party context,
to those matters necessary for the adjudication of the original
complaint and the protection of the original defendant.
Consistent with the recommendation that proper venue be
required for each defendant in a multi-defendant action it is
recommended that any venue revision preserve to the third-party
defendant the right to insist on proper venue of all claims asserted
against him other than the original claim for contribution or
indemnity.
E. Dismissals and the Statute of Limitations
In Kentucky if the venue of an action is improper and the
defendant has made a timely objection the court must dismiss
the case. There is no provision in the statutes or Rules for a
transfer to a court with proper venue except by mutual consent
of the parties (which it would be unlikely to obtain) .248 This gives
rise to two problems, one major and one minor. The minor problem is whether the statute of limitations is tolled by the pendency
of an action dismissed for improper venue. The major problem
is the fact that a trial court's finding of improper venue is a final
and appealable order.
The minor problem is presented by the wording of Kentucky's
saving statute. KRS § 418.270 simply provides that if an action
is commenced in good faith and ultimately dismissed for lack of
jurisdiction that the plaintiff has ninety days in which to commence an action in the proper court, even though the statute of
248 KRS § 452.010(1) (1971) provides for transfer by consent of the
parties. When venue is improper a court would find it difficult to obtain a
consent to transfer under this section because one or the other of the parties
would imagine some advantage to be gained by a final order of dismissal. In the
days when jurisdiction and venue were confused it was held that a transfer by
consent could only be had if the venue (or jurisdiction) was proper initially.
Shadoin v. Sellars, 4 S.W.2d 717, 720 (Ky. 1928).
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limitations has otherwise run. Does "jurisdiction" include venue?
Both the Kentucky Court of Appeals and a United States Court of
Appeals have held that it does.249 The federal court specifically
addressed itself to the confusion between jurisdiction and venue
in holding that the saving statute should be broadly construed.250
If there is no proper forum within the state (which is unlikely
but possible) the plaintiff may be forced to sue in a state without
a saving statute. This problem was met in Ohio by a rule by
which an agreement is elicited from the defendant before dismissal to the effect that the date of the commencement of the
Ohio action is the date of the commencement of the action in
the forum with proper venue.251 If the defendant refuses to
consent the Ohio rule provides that the court shall hear the
action. Such a rule effectively eliminates the injustice which
might otherwise occur as a result of a sister state's lack of a
saving statute.
The major problem presented by dismissals for improper
venue is that the dismissal terminates the litigation. The plaintiff
is put to the added trouble and expense (and the attorney is
embarrased) of Ming a complaint in another county. The defendant, once bitten, may avoid service of process. On the other
hand the plaintiff may decide to appeal the dismissal rather than
accepting the decision of the trial court, thus causing a delay
in the ultimate litigation on the merits. These factors, plus the
fact that courts often are reluctant to create an appealable order
by a dismissal at an early stage, may lead courts in close situations
to overrule the motion to dismiss. The order overruling is of
course interlocutory and not appealable. The distinction between
jurisdiction and venue will then frustrate the defendant who seeks
a writ of prohibition from the Court of Appeals; 252 although it is
likely that the Court would issue the writ in the event the trial
court showed blatant disregard for the venue statutes. It would
be fairer if a court's decision on the motion to dismiss for improper
249 Shircliff v. Elliott, 384 F.2d 947 (6th Cir. 1967); D. & I. Leasing, Inc. v.
Hercules Galion Products, Inc., 429 S.W.2d 854 (Ky. 1968).
250 384 F.2d at 950.
2 51
0mo R. Civ. P. 3(D): Rule 3(D) also contemplates extorted consent to
the propriety
of venue in the other state. R. Miller, supra note 225, at 116, 154.
25 2
Warecke v. Richardson, 468 S.W.2d 795 (Ky. 1971) (writ of prohibition
would not lie on behalf of non-residents who were served with process while in the
state attending a trial; this was a question of jurisdiction over the person, not the
subject matter of the action).
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venue were either always appealable or never appealable. Then
the trial court would decide the matter "down the middle", for
the right of appeal, or lack of such right, would be the same
whatever the decision.
What happens when either party can appeal the venue decision? It has been estimated that in Texas, where the defendant
can appeal a denial of privilege (the right to have a case tried
in the county of his residence) that one out of every eleven cases
in the Court of Civil Appeals involves a plea of privilege.2 53
This statistic points out an obvious truth; the allowance of
interlocutory appeals gives a party a tool to harass and wear
down his opponent. This is an evil the Civil Rules were designed
to meet and the venue laws should not be changed in such a way
that this interest might be frustrated. This leads to the conclusion that the venue decision either way should be nonappealable; that a venue revision should include a simple transfer
section for cases where venue is improperly laid. This may at
times work an injustice but should result in more equitable
venue decisions and fewer wasteful appeals.
F. Change of Venue
The Kentucky statutes provide for change of venue in civil
cases in limited situations. The statute provides for such a change
if the influence of the adversary or the odium attending the
applicant or the circumstances or nature of the case prevent
the applicant from having a fair trial in the county."' The applicant must be able to represent that there is something special
about the case which prevents him from having a fair trial at all
in the county. A review of the cases indicates that this right of
transfer is illusory. The matter has consistently been deemed to
be within the discretion of the trial court, and the only appellate case in recent years in which a trial court granted a
change of venue in a civil action was a wrongful death action by
the personal representative of a prisoner beaten by the county
attorney while in custody. The grand jury refused to indict the
county attorney; the judge then transferred the civil case to a
253 Leonard v. Maxwell, 365 S.W.2d 840, 346 (Tex. 1963).
254 KRS § 452.010(2) (1971). Procedures for change are set out in KRS §
452.020 to KRS § 452.110 (1971).
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surrounding county and the Court of Appeals affirmed. 5 Otherwise trial courts have been consistent in overruling the motion for
change regardless of the prominence in the community of the
25 6
plaintiff or his witnesses.
It is obvious that the legislature did not intend for a court
to be able to transfer a case to another county merely because
it believed the other county to be more neutral or more convenient to the litigants. And the courts have construed the law
so that the plaintiff's choice of forum, if proper, will not be upset
except under the most extreme circumstances. The question is
whether or not a court should have power to transfer a case
whose venue is properly laid to the most convenient forum. This
was proposed in Ohio257 but not adopted.258 Although the Court
of Appeals of Kentucky should have the power to adopt rules
for the transfer of cases for matters of convenience to the court
as well as the litigants, 5 it is not proposed that the Court of
Appeals utilize this power in the near future. Transfer to the
most convenient forum is a relatively sophisticated concept260 and
might lead to territorial squabbles between the trial judges. In a
revision of the venue provisions transfer should initially be
restricted, as it now is, to the traditional ground of inability to
obtain a fair trial. A review of the cases does suggest, however,
that trial courts might be somewhat more liberal in granting
changes on that ground.
704 (Ky. 1941).
148theS.W.2d
. Courn
255
eynodscases
Recent
in
ch
trial court overruled the motion for change of
venue and the Court of Appeals affirmed include: Miller v. Watts, 436 S.W.2d 515
(Ky. 1969) (plaintiff's attorney had campaigned for county attorney with an
advertisement that his practice was largely against insurance companies); Southeastern Greyhound Lines v. Davis, 160 S.W.2d 625 (Ky. 1942) (plaintiff was a
former teacher and county attorney and his father was a public official); Smith v.
Mathers' Admr, 135 S.W.2d 889 (Ky. 1940) (two of the testamentary bequests
in an action to set aside a will were for the establishment of a school and hospital
in the county); and Leming's Admr v. Leachman, 105 S.W. 2d 1043 (Ky. 1937)
(defendant was a merchant of high standing; his witnesses were county officials).
257 Miller, supranote 225, at 149-150, 159-163.
25s Omo R. Civ. P. 3 contains no provisions for the transfer of a case on
grounds of convenience. Orno 1. Crv. P. 3(C) (4) provides for transfer on the
traditional ground of inability to have an impartial trial.
259 Cf. Miller, supra note 225, at 160 where it is suggested that the court on
its own motion might transfer a case to alleviate calendar congestion.
260 Miller, supra note 225, at 149 lists twelve factors to be taken into account
in ruling on a motion to transfer to a more convenient forum. Among the factors
are: access to proofs; costs; possibility of a view of the premises; motives of plaintiff
and defendant; calendar congestion; and the relation of the controversy to the
community from which the jury is to be drawn.
258
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IV. TE
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PATH TO REFORm
A. The Ohio Experience
Prior to 1968 civil procedure in Ohio was regulated by statute
and supplemented by local rules adopted by the various courts of
that state. The Supreme Court of Ohio lacked authority to
promulgate rules of procedure. In May, 1968 the voters passed a
constitutional amendment giving the Supreme Court of the state
general supervisory power to prescribe rules of procedure.26 '
The Supreme Court's authority to prescribe rules of practice and
procedure is limited, by the terms of the amendment, to rules
which do not abridge, enlarge, or modify substantive rights. 6 2
The procedure to be used in rule formulation is for the Supreme
Court to file proposed rules with the general assembly of the
state on or before the fifteenth of January each year with the
rules to become effective automatically on July 1 unless the
assembly passes a concurrent resolution of disapproval. 26 3 The
Supreme Court thus bears the responsibility for rule formulation,
with the legislature's role limited to a veto power.
Pursuant to its new authority the Supreme Court forwarded
rules of procedure to the 1970 Ohio legislatureO2 64 patterned after
the Federal Rules of Civil Procedure. 26 5 These rules were not
vetoed by the legislature and became effective on July 1, 1970.
The Supreme Court went beyond the Federal Rules and promulgated a simple set of rules to govern the venue of civil actions.266
That such rules will be held to be procedural and not substantive
appears to be a legal certainty as the body which prescribed the
rules is the same body which ultimately will decide the constitutionality of the action.6 7 This statement is not meant to be
cynical; it simply reflects the obvious fact that the Supreme Court
of Ohio has already decided that it can constitutionally regulate
261
For a complete history of the constitutional amendment and its impact on
Ohio practice see W. Milligan and J. Poblman, The 1968 Modem Courts Amendment2 to
62 the Ohio Constitution, 29 OMo ST. L.J. 811 (1968).
0mo CONST. ART. IV, § 5(B).
263 Id.
264 Page's Omo REVISED CODE, CIVIL RULES EDioN, p. ix (1971).
265 Page's Onxo REvisED CODE, CivW RuLEs VOLUME, p. iii, iv (1971); Milligan
and Pohlman,
supra note 261, at 880.
266
Ojo R. Civ. P. 3(B) to 3(G).
267 Milligan and Pohlman, supra note 261, at 832; cf. Hanna v. Plummer, 380
U.S. 460, 471 (1965).
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VENUE OF CiVIm AcnONS IN KENTUCKY
venue. Such a decision is in keeping with the new role of the
Supreme Court of Ohio as the general superintendent of the
court system with authority over record keeping, assignments, and
disqualification of judges. 68
The venue rule itself borrows heavily from proposals made
by Professor Richard Miller of Ohio State University in a 1968
critique of jurisdiction, venue, and service of process in Ohio.26 9
The drafters essentially followed Miller's proposal to present the
plaintiff with a number of alternate forums in a broad-based rule
applicable to all actions where venue is not specifically established by statute. Under Rule 3(B) 270 the plaintiff can sue: (1)
where the defendant resides; (2) where the defendant has his
principal place of business; (3) where the defendant conducted
activity which gave rise to the cause of action; (4) in the county
in which the property is located if property is the subject of the
2 8
0
Milligan and Pohlman, supra note 261, at 822-827.
269 See Miller, supra note 225, at 146-162 (1968); staff note to Rule 3, Omo
REV. CODE, Crvn RuLEs VOLUMM, 15 (1971).
270 "Venue: where proper. Any action may be venued, commenced and
decided in any court in any county. When applied to county and municipal courts
"county" as used in this rule shall be construed where appropriate, as the territorial
limits of those courts. Proper venue lies in any one or more of the following
counties:
(I) The county in which the defendant resides;
2 The county in which the defendant has his principal place of business;
A county in which the defendant conducted activity which gave rise to
the claim for relief;
(4) A county in which a public officer maintains his principal office if suit
is brought against him in his official capacity;
(5) A county in which the property, or any part thereof, is situated if the
subject of the action is real property or tangible personal property;
(6) The county in which all or a part of the claim for relief arose; or, if the
claim for relief arose upon a river, or other watercourse, or a road, which is the
boundary of the state, or of two or more counties, in any county bordering on
such river, watercourse, or road, and opposite to the place where the claim for
relief arose;
(7) In actions described in Rule 4.3 (out-of-state service) in the county
where plaintiff resides;
(8) In an action against an executor, administrator, guardian, or trustee, in
the county in which he was appointed;
(9) In actions for divorce, annulment or for alimony in the county in which
the plaintiff is and has been a resident for at least ninety days immediately preceding the filing of the complaint;
(10) If there is no available forum in subsections (1) through (9) of this
subdivision, in the county in which plaintiff resides; has his principal place of
business or regularly and systematically conducts business activity;
(11) If there is no available forum in subsections (1) through (10) of this
subdivision:
(a) In a county in which defendant has property or debts owing to him
subject to attachment or garnishment;
(b) In a county in which defendant has appointed an agent to receive
service of process or wherein such agent has been appointed by operation of law."
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KENTUcKY LAw JoxNAL[
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action; and (5) where all or part of the cause of action arose.
In addition public officers sued in their official capacities may
be sued where their office is maintained; personal representatives
and fiduciaries may be sued in the county of their appointment;
persons sued under the long-arm statute (now a court rule) may
be served in the county of plaintiff's residence; and actions for
divorce, annulment or alimony may be maintained in a county
in which the plaintiff has resided for the 90 days immediately
preceeding the suit. If these provisions do not yield a proper
forum plaintiff may sue in the county of his own residence. If the
plaintiff still does not have an available forum he may sue in any
county in which the defendant has property to attach or garnishee
or in which the defendant has appointed an agent to receive
process (or where an agent has been appointed for him by law).
The only significant changes from Miller's proposal are to eliminate, as a permitted forum, counties in which the defendant
regularly and systematically conducts business and to eliminate
completely venue in the county in which the defendant is summoned. 1
Rule 1 (C) provides that the Ohio rules are not applicable to
the extent they conflict with specific statutory proceedings. 72
In the venue context this means that where the legislature has
provided for the place of trial in enacting substantive legislation
those provisions are to be followed; where there is no provision
for venue within the substantive law Rule 3 controls.273 The
Kentucky rules are similar to those of Ohio in recognizing the
power of the legislative branch to provide for special procedures
in conjunction with causes of action established or regulated by
statute.2 7 4 The effect of a broad based venue rule in Kentucky
would therefore be the same as in Ohio; that is, specific statutory
2 75
provisions, such as the provision for sale of realty of a minor,
would still be followed. Statutory causes of action without an
See Miller, supra note 225, at 147-148.
Omo R. Civ. P. I (C).
273 J. McCormac, Venue--"New" concepts in Ohio, 39 Cm. L.J. 474, 479-480
(1970).
274 KRCP 1; Chiquelin v. Linker, 323 S.W.2d 583 (Ky. 1959) (distress for
rent is a special statutory proceeding with procedures fully governed by statute; the
Civil Rule provisions for notice and parties are inapplicable).
275 KRS § 389.010(1) (1971).
271
27 2
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AcrIONs
iN KENcKY
accompanying venue section would be governed by the venue
rule.
There is a simple provision in the Ohio rule for transfer of
improperly laid actions to a county with proper venue27' with
the power in the court to assess attorney fees against the party
who improperly commenced the action. While Miller proposed
that courts be empowered to transfer cases with proper venue to
the most convenient fornm,278 the rule limits change of venue to
the traditional ground of inability to obtain a fair trial.27 9 Under
the rule, the proper venue of one claim or one defendant, so long
as he is not a "nominal" defendant, will establish proper venue
for the entire action.2 80 Miller also proposed, however, that the
courts have the power to sever and transfer claims for the convenience of litigants and witnesses. 281 This was not adopted by
the Ohio Court.
Miller proposed, 282 and the Ohio Court accepted, rules tc
protect suitors when no suitable forum existed in Ohio, 28 3 and
270 "When an action has been commenced in a county other than stated to be
proper in subdivision (B) of this rule, upon timely assertion of the defense of
improper venue as provided in Rule 12, the court shall transfer the action to a
county stated to be proper in subdivision (B) of this rule." Orno R. Civ. P.
3(C) (1).
277 'When an action is transferred to a county which is proper, the court may
assess costs, including reasonable attorney fees, to the time of transfer against the
party who commenced the action in a county other than that stated to be proper
in subdivision (B) of this rule." Omo R. Civ. P. 3(C)(2).
278 See Miller, supra note 225, at 149, 161-162.
279 "Upon motion of any party or upon its own motion the court may transfer
any action to an adjoining county within this state when it appears that a fair
and impartial trial cannot be had in the county in which the suit is pending." Olno
R. Civ. P. 3(C)(4). The Supreme Court of Ohio felt that more harm than good
would result from an attempt to transfer a case to a slightly better forum. McCormac, supra note 273 at 484.
280 "In any action, brought by one or more plaintiffs against one or more
defendants involving one or more claims for relief, the forum shall be deemed a
proper forum, and venue therein shall be proper, if the venue is proper as to any
one party other than a nominal party, or as to any one claim for relief.
Neither the dismissal of any claim nor of any party except an indispensable
party shall affect the jurisdiction of the court over the remaining parties." Oaxo R.
CIv. P. 3(E).
281 Miller, supra note 225, at 150.
282 Miller, supranote 225, at 149, 151.
283 "When a court, upon motion of any party or upon its own motion,
determines: (1) that the county in which the action is brought is not a proper
forum; (2) that there is no other proper forum for trial within this state;
and (3) that there exists a proper forum
trial in another jurisdiction outside
this state, the court shall stay the actionforupon
condition that all defendants
consent to the jurisdiction, waive venue, and agree that the date of commencement of the action in Ohio shall be the date of commencement for the
application of the statute of limitations to the action in that forum in another juris(Continued on next page)
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to provide for the filing of notices as to the pendency and status
of in -remactions affecting real or personal property outside the
forum county. 84
In summary, venue in Ohio is regulated by court rule rather
than statute (although the legislature can override); a number
(Footnote continued from preceding page)
diction which the court deems to be the proper forum. If all defendants agree to
the conditions, the court shall not dismiss the action, but the action shall be stayed
until the court receives notice by affidavit that plaintiff has recommenced
the action in the out-of-state forum within sixty days after the effective date of
the order staying the original action. If the plaintiff fails to recommence the action
in the out-of-state forum within the sixty day period, the court shall dismiss the
action without prejudice. If all defendants do not agree to or comply with the
conditions, the court shall hear the action. If the court determines that a proper
forum does not exist in another jurisdiction, it shall hear the action." Omo R. Civ.
P.3(D).
284 "(1) When an action affecting the title to or possession of real property or
tangible personal property is commenced in a county other than the county in
which all of the real property or tangible personal property is situated, the plaintiff
must cause a certified copy of the complaint to be filed with the clerk of the court
of common pleas in each county or additional county in which the real property or
tangible personal property affected by the action is situated. If the plaintiff fails to
file such certified copy of the complaint, third persons will not be charged with
notice of the pendency of the action.
To the extent authorized by the laws of the United States, this subsection
also applies to actions, other than proceedings in bankruptcy, affecting title to or
possession of real property in this state commenced in a United States District
Court whenever such real property is situated wholly or partly in a county other
than the county in which the permanent records of such court are kept.
(2) After final judgment, or upon dismissal of the action, the clerk of the
court that issued the judgment shall transmit a certified copy of the judgment or
dismissal to the clerk of the court of common pleas in each county or additional
county in which real or tangible personal property affected by the action is
situated.
(3) When the clerk has transmitted a certified copy of the judgment to
another county in accordance with subsection (2) above, and such judgment is
later appealed, vacated or modified, the appellant or the party at whose instance
the judgment was vacated or modified must cause a certified copy of the notice
of appeal or order of vacation or modification to be filed with the clerk of the
court of common pleas of each county or additional county in which the real
property or tangible personal property is situated. Unless a certified copy of the
notice of appeal or order of vacation or modification is so filed, third persons will
not be charged with notice of the appeal, vacation or modification.
(4) The clerk of the court receiving a certified copy filed or transmitted in
accordance with the provisions of this subdivision shall number, index, docket and
file it in the records of the receiving court. He shall index the first such certified
copy he receives in connection with a particular action in the indices to the
records of action, commenced in his own court, but he may number, docket and
file it in either the regular records of his own court or in a separate of records.
When he subsequently receives a certified copy in connection with that same
action, he need not index it, but he shall docket and file it in the same set of
records under the same case number he previously assigned to the action.
(5) When an action affecting title to registered land is commenced in a
county other than the county in which all of such land is situated, any certified
copy required or permitted by this subdivision shall be filed with or transmitted
to the county recorder, rather than the clerk of the court of common pleas, of each
county or additional county in which such land is situated." Omo R. Civ. P. 3(F).
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VmE OF Cwm ACTIoNs
]N KENTUCKY
of alternate forums for the litigant are provided in one broadly
based rule; improper venue is remedied by transfer rather than
dismissal; proper venue as to one defendant or claim renders the
venue of the whole action proper; safeguards are provided when
it will be necessary to recommence the action outside the state;
transfer of actions properly laid is restricted to situations where
the defendant is unable to obtain an impartial trial; and there
are recording provisions to give notice of actions involving real
property out of the county. In addition it is clear that venue
rules are not to be confused with jurisdiction.85
B. Recommendations for Kentucky
1. Regulation by the Court of Appeals
It is recommended that the Court of Appeals of Kentucky
undertake to regulate venue pursuant to the authority in the Court
to formulate rules of practice and procedur 2 86 and that the legislature cooperate by repealing the sections of KRS Chapter 452
applicable to the venue of civil actions. Such an undertaking by
the Court would of course be a reversal of the opinion of the
original Civil Code Committee that venue was a matter of substance and within the exclusive province of the legislature. The
assumption of authority is clearly warranted, however, in light
of the fact that venue simply is a designation of the place where
suits are to be tried. It is no more substantive in the substanceprocedure dichotomy than a rule providing for free joinder of
claims or for impleader of third parties. It has never been argued
that venue is anything but procedural in the federal courts for
purposes of application of the Erie doctrine287 in diversity cases.288
Furthermore, a unitary approach to the court system, where the
highest court is empowered to supervise the lower courts, implies
285 "The provision of this rule relate to venue and are not urisdictional. No
order, judgment, or decree shall be void or subject to collateral attack solely on
tbe groun that there was improper venue; however nothing here shall affect the
right 2to
R. Crv. P. 3 (G).
8 appeal an error of court concernig venue." 0os
0 JS § 447.151. The court may well have a constitution Ig'ht to formulate procedural rules. Ky. CoNST. § 110 provides that the Court "Ishallave power
to issue such writs as may be necessary to give it control of inferior jurisdictions:"
287 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
288 Venue is proper in diversity actions in the district where all plaintiffs or
all defendants reside or in which the claim arose. 28 U.S.C.A. 1391 (1971 supp.)
It has never been seriously argued that the statute must yield to state venue
statutes.
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authority to regulate where suits are to be tried, for judicial
convenience and economy if no other reason. The Court of
Appeals presently has extensive supervisory powers by constitution" 9 and statute 290 and it would be consistent with its role as
administrator to adopt rules for the bringing and transfer of
actions.
This is not to say that venue is not of importance to litigants.
It is of extreme importance. But the history of the Federal Rules
demonstrates that a court can prescribe rules substantially affecting the rights of litigants, which redound to the benefit of all.
There is no reason to suppose that rules of venue formulated
by a court will be less fair than statutes passed by a legislature.
On the contrary there is every expectation that such rules would
be responsive to the needs of bench and bar and would be fair
to both plaintiffs and defendants.
The first step in achieving court regulation of venue would be
for the court to ask the Rules Committee or a specially appointed
Judicial Commission to study the subject and make recommendations prior to the next meeting of the general assembly. While
this paper focuses on civil venue, the committee might well be
charged with studying the entire subject of administration of
litigation. The Court of Appeals would study the committee
report and promulgate rules of venue to be effective at a future
date; the general assembly would cooperate by repealing the
conflicting sections of K.RS Chapter 452.291 The legislature could
retain venue sections connected with special statutory proceedings
and even enact legislation to regulate other statutory proceedings
which do not presently contain a venue section.292
289
Ky.CONST. § 110.
2
90 KRS § 23.045 (1971)-regulation
of terms of circuit judges; KRS §
23.055 (1971)-supervision of dockets and appointment of special judges.
291 Cooperation by the legislature would avoid conflict with the Court of
Appeals which has on occasion asserted its inherent right, as declared in section 110
of the Kentucky Constitution, to supervise the lower courts free from unwarranted
legislative
interference. Sidell v. Hill, 357 S.W.2d 318 (Ky. 1962).
292
For the legislative and judicial branches to divide the regulation of venue
seems to violate the constitutional mandate of separation of powers. Ky. Const. §
28. KRCP 1 clearly provides however, that the Civil Rules will yield to procedural
provisions embodied in statutory proceedings. Statutory procedures conflicting
with the Rules were upheld in Chiquelin v. Linker, 323 S.W.2d 583 (Ky. 1959)
and Dawson v. Hensley, 423 S.W.2d 911 (Ky. 1968) (although neither case
involves the question of separation of powers). In Dawson it appears the effective
(Continued on next page)
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VENUE OF
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IN KENTUCKY
2. Specific Recommendations
The Court of Appeals, in its role as administrator of lower
courts, should strive to make civil litigation speedier, fairer and
more economical. The defendant's right to insist on a certain
place of trial might be abolished completely in the future, with
the place of trial and the supervision of pre-trial proceedings
determined by considerations of judicial convenience and economy. The Court should certainly have authority to move against
inefficiency and provincial bias on a broad front. The initial court
regulation of venue should, however, be conservative, with the
emphasis on simplicity and fairness to litigants. The following
suggestions are offered to assist in the initial regulation.
a. The Broad-BasedRule
To the extent not regulated by specific statutes to the contrary,
the proper venue of civil actions should be governed by one
broadly based rule. Venue should be proper under such a rule:
(1) in the county in which the defendant resides; (2) if in personam relief is sought, in the county in which the cause of action,
or any part thereof, arose, or in the county in which the defendant
conducted activity which gave rise to the claim for relief; and (8)
if the action is in rem (as opposed to quasi-in rem), in the county
in which the res, or any part thereof, is situated. Actions against
non-residents under the long-arm statute would continue to be
proper in the county of the plaintiff's residence. Quasi-in-rem
actions against non-residents commenced by seizure of the nonresidents property would continue to be proper in the county
in which the property is located.
This rule would reject the plaintiff's residence as a basis for
venue (other than in the non-resident situation) on the assumption that plaintiffs through their lawyers on occasion do file
harassing lawsuits and that the ability to sue a distant defendant
in a plaintiff's home county might encourage spurious litigation.
(Footnote continued from preceding page)
date of the statute was after the enactment of the Civil Rules. There are many
instances of statutory procedures accompanying substantive rules. Divorce and
adoption are obvious examples. It is clear that the Court does not regard the
constitutional prohibition against mingling of powers as a serious obstacle to both
the legislature and judiciary regulating civil procedure. As long as legislative
activity is restricted to procedures (including venue) coupled to substantive laws,
no constitutional question should arise.
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The rule would, however, always give the prospective plaintiff
the right to sue for in personam relief in the county or counties
where the cause of action arose or the defendant's conduct giving
rise to the claim took place-the counties in other words, where
the facts occurred. There can, of course, be controversy over
where the cause of action took place. The addition of the phrase
"where the defendant's conduct giving rise to such claim" is
intended to render such controversy meaningless.2 93 The effect
of the broad-based rule would be to abolish the transitory action
(where plaintiff has no option but to go to defendant's county),
clear up the uncertainties now presented by the gaps in KRS §
452.460, and do away with the special treatment of trespass to
land.
By defining the "residence" of corporations and personal representatives, the rule would also end the confusion and inequities
now present in the statutory treatment. A corporation's residence
should be defined as the county in which the principal place of
business is located. There should be no special treatment of
banks, insurance companies, common carriers, and public works
contractors. Personal representatives (executors, administrators,
guardians, committees and trustees) should be deemed to reside
in the county in which they are appointed. The confusion in this
area created by the original code and subsequent court actions
has been analyzed at length. There seems to be no legitimate
reason for treating corporations and personal representatives
differently from natural persons. They should have a residence
and be amenable to suit there just as natural persons would be.
They should further be amenable to suit in the county or counties
where the claim arose or the wrongful conduct took place, or if
the action is in rein,where the res is located.
It also seems logical that local governmental units should
be treated the same as natural persons and should be sui juris not
only at the seat of government but where the cause of action
arises. Actions against the state are regulated by specific statutory
proceedings294 which will not be affected by venue rules promulgated by the court.
293
Miller, supra note 225, at 157.
2 94
See e.g., KRS Ch. 44 (claims upon the treasury).
The bearing in a
Board of Claims action is to be held in the county in which the claim accrues.
(Continued on next page)
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VENUE op Cvnm ACTIONS IN KENrCkKy
In rem actions would be maintainable under the rule where
the res is located or where the defendant resides. This would
close the gap created by the failure of the venue statutes to deal
with personal property or status. It would also give plaintiff an
optional forum, the county of defendant's residence. A rule
should be adopted providing for notifying the clerk of the county
in which the property is located of the pendency and status of
the action. 29 5 This suggested treatment of in rem actions is a
middle ground between the proposal of Stevens,296 where venue
would be p'.oper only where the res is located, and the Ohio rule
where venue is proper where the cause of action arises.297 Cases
involving status would be proper in the county of defendant's
residence or in the county in which the status exists. This would
have the effect of permitting a divorce action to be filed in the
county of bona fide residence of either husband or wife. If the
legislature feels this would prompt an unseemly race to the courtcould be made a part of the
house, the existing special treatment
298
substantive statutes on divorce.
b. Multiple Defendants
The Ohio rule provides that if the venue is proper as to any
defendant other than a nominal defendant, the venue of the
whole action is proper.299 This follows the proposal of Miller300
and Stevens801 and represents an effort to coordinate venue with
rules permitting liberal joinder of defendants. It is suggested
here, however, that each defendant continue to be able to insist
that the venue be proper as to him. This would have the effect of
forcing the plaintiff in a multi-defendant action to the county in
which the cause of action arose. This is not a bad result. Any
unfairness to the plaintiff is outweighed by the protection such a
rule would afford to the defendant who would otherwise be
(Footnote continued from preceding page)
KBS § 44.084 (1971). This consistent with the proposed broad-based rule.
2095 Omo R. Crv. P. 3(F) is a well-considered and comprehensive lis pendens
rule. See note 284 supra.
296 Stevens, supra note 24, at 333.
297
Omo R. Crv. P. 3(B).
298 By re-numbering KRS § 452.47(0 (1971), governing venue of actions for
divorce
2 0 and alimony.
9 Omo R. Civ. P. 3(E).
300 Miller, supra note 225, at 150.
301 Stevens, supra note 24, at 334.
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[Vol.
forced to a county with which neither he nor the cause of action
has any relation. °2 Such a rule would eliminate the two existing
situations 03 in which proper venue against one defendant will
sustain the venue of the whole action.
It is possible that, with multiple defendants, application of
the broad-based venue rule would not yield a proper forum
within the state. This would occur if the plaintiff's cause of
action arose outside the state and the defendants resided in
different counties within the state. This will obviously not occur
often. To meet the contingency it is suggested that the Court
provide that if proper venue cannot otherwise be laid in any
county in the state, that venue based on the residence or wrongful
act of one defendant, other than a nominal defendant, establish
proper venue as to the other defendants. A challenge that a party
is a nominal defendant to establish venue would be required at
the commencement of the action, with court resolution of the
4
30
matter at that time.
c. Multiple Claims
Again a conservative approach is thought best in the initial
venue rules. It is proposed that the Court require an independent
venue base for independent claims in a complaint, but where
the claims arise out of the same transaction or occurrence or
series of transactions or occurrences that the proper venue of one
claim establish the proper venue of the action. Such a rule would
be a simplification of the current court position and would reject
the Ohio solution-where there is no requirement, for venue purposes, of factual connection between the claims. The Ohio rule
presupposes that if the defendant is in court for one purpose he
might as well resolve all of his differences with the plaintiff. The
conservative approach taken here is premised on the belief that,
at least in jury cases, the place of trial is of supreme importance
to the defendant and he should be able to insist on a factual connection between each claim sued on and the county in which suit
is maintained (or that he be sued in the county of his residence).
302 It is significant that in the federal system venue based on residence must be
proper as to all defendants. 28 U.S.C.A. 1391 (1971 supp.).
303 Transitory actions and actions against common carriers. See text at note
128 suOva.
See generally Stevens, supra note 24, at 330 for an analysis of the reason
S28
for requiring court resolution at an early stage of the proceedings.
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1972.]
VFEN-u] oF Cinm AcrioNs
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This approach would still permit trial courts to examine a
complaint in search of plaintiff's true cause of action, rejecting
accordingly nominal counts or erroneously defined causes. The
courts would, however, be bound to accept the true multi-claim
complaint and permit venue to be established by any related
claim. This would have the most practical significance in the
action in which both in personam and in rem relief are sought.
Venue would be proper, under the broad-based rule, both in the
county in which the res was located and in the county in which
the cause of action arose (or wrongful acts occurred). This is as
it should be. The only reason for not permitting an action for
in personam relief involving real or personal property to be filed
where the res is located is the fear that a prospective plaintiff
would move the personal property (a wrecked car for example)
to the county of his residence to establish venue. The only reason
for not permitting in rem actions to be filed in the county where
the cause of action accrued or the wrongful acts occurred is the
confusion which might be caused by attempting to ascertain the
place of accrual of a cause of action in a purely in rem action,
such as a suit for declaration of rights in a trust. These considerations are not present 0 5 when the case lends itself to both
in personam and in rem relief, as for example in a foreclosure
action, and proper venue should be established by either the
in personam claim or the in rem claim.
d. Transfer of Actions Where Venue is Improper
The Court should provide for the transfer of actions where
venue is improperly laid to a court where venue is proper. The
rule could provide for a discretionary assessment of attorney fees.
until the time of transfer against the plaintiff and could provide for transfer by the court on its own motion in cases in
which the defendant is in default for failure to appear s06 It is
clear that a court's decision that venue is improper should be
interlocutory just as is a decision that venue is proper. In neither
case should there be a right of appeal prior to adjudication on
the merits.
305 Divorce actions where alimony is sought do present problems if the plaintiff
is permitted to sue where the cause of action arose or wrongful acts took place.
This is another reason for regulating the venue of actions for divorce and alimony
as part
3 06of the substantive law of divorce.
Omo R. Crv. P. 3(C)(2), 3(C)(3).
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KmNTUcKY LAW JOURNAL
e. Transferof Actions Where Venue is Proper
It is suggested that the Court retain for the present the traditional grounds of change of venue: inability to have a fair trial
because of the nature of the case, the influence of the adversary,
or the odium surrounding the applicant3 07-but that the Court
interpret the grounds more liberally than in the past. 08 At some
future time the Court undoubtedly should provide for transfer
of cases to achieve the fairest and most convenient forum for all.
Transfer on grounds of convenience is, however, a complex matter
and demands co-operation among the trial courts and a common
understanding of the rules of convenience. In Ohio transfer on
grounds of convenience was proposed s0 but rejected by the Ohio
Supreme Court, a move applauded by the author of the staff note
who felt that more harm than good would result from attempts to
transfer actions to slightly better forums.3 10 In the federal system,
1
where venue can be changed on grounds of convenience3 1
(although only to a forum where venue would have been proper
in the first place),3 12 it is possible to have the case treated like a
hot potato and have it transferred back and forth between
districts because of a disagreement between the judges as to the
best place for the action. 1 3 When the Kentucky Court of Appeals moves to full and effective coordination of the efforts of the
lower courts, it will be time to provide for transfer of all or part
of a case on grounds of convenience. Until then it is better to
restrict transfer to cases in which the applicant for transfer is
unable to obtain a fair trial.
307 KRS
3
§ 452.010 (1971).
08 Supra note 256 and accompaning text.
309
Miller, supra note 225, at 149-150.
31
o McCormac, supra note 273 at 484.
31128 U.S.C.A. 1404(a).
812 Hoffman v. Blaski, 363 U.S. 335 (1960).
318 See dissenting opinion of Frankfurter, J. in Hoff-man v. Blaski, 363 U.S.
335, 346-7 (1960).
HeinOnline -- 60 Ky. L.J. 564 1971-1972